The WasteWatcher: The Staff Blog of Citizens Against Government Waste

DOJ Files Suit Against California’s Onerous Net Neutrality Law

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.


While not unexpected, it was still disappointing to see California Governor Jerry Brown (D) sign into law Senate Bill 822, creating the most restrictive set of rules for internet service providers (ISPs) in U.S. history.  California has often attempted to set standards for the rest of the nation in everything from the environment to technology, often in contravention of the federal powers reserved under the Constitution. 

As anticipated, the Department of Justice (DOJ) immediately filed suit against the state for intervening in interstate commerce and subverting “the Federal Government’s deregulatory approach by imposing burdensome state regulations on the free internet, which is unlawful and anti-consumer.”  It would effectively replace and overturn the Federal Communications Commission’s Restoring Internet Freedom Order (RIFO), which itself superseded the Open Internet Order (OIO).

Except for the short period from June 12, 2015 to June 11, 2018 when the OIO was in effect and the internet was classified as a telephone service under the Communications Act of 1934, the internet operated as an information service.  Claims that SB 822 was urgently necessary to protect California consumers from their providers is disingenuous.  Regardless of whether DOJ wins or loses this case, the state still retains the authority to enforce all applicable consumer protection laws, including laws prohibiting fraud and unfair or deceptive business practices. 

While the California law contains language from the OIO as its base bill, it takes government intrusion a few steps further by determining for its citizens which new service offerings should be allowed and which should be banned, including such popular offerings like free data plans.  This is bad news for consumers and businesses alike. 

Across the country, more than 150 state and local governments have proposed or considered their own internet regulations.  Should these take effect, there would be massive disruption and dysfunction as ISPs strive to adjust their offerings to comply with a patchwork of disparate regulations state by state and locality by locality.   Such a situation is clearly untenable and could lead to the ultimate destruction of the vibrate online economy.  It would also open the door for international competitors to overtake the U.S. lead in technology, especially in 5G, where China is already pushing hard to be first.

If states like California truly want to resolve the issue of internet governance, then they should push for Congress to develop national standards.  Yet, some of the strongest proponents of the OIO and laws such as SB 822 have refused to cooperate on any such legislation.  Instead they are determined to use internet governance as a political tool, which is unfair to ISPs and harmful to customers across the country. 

During the debate of the Congressional Review Act (CRA) resolution to rescind the RIFO, Sen. John Thune (R-S.D.) attempted to have the CRA set aside and allow the Senate to consider legislation to protect an open internet, but his efforts were rebuffed.  The result has been the enactment of what will be the first of many state or local bills to regulate the internet and the waste of taxpayer dollars on lawsuits like the one filed by the DOJ that are highly likely to overturn such actions.

This charade should come to an end.  Taxpayers should demand that Congress act affirmatively and resolve this issue once and for all.

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