Judge Rules California Can Enforce State Net Neutrality Rule

On Tuesday, Judge John A. Mendez of the Eastern District of California reached a verdict, as noted in the docket, denying telecom industry advocacy groups’ motion for a preliminary injunction to block the legislation (SB 822) after a hearing on the matter, thus allowing California to enforce its net neutrality rule while the litigation continues.  

This ruling is a major win for California, legislators, and internet activists who have been fighting for net neutrality after the Federal Communications Commission (FCC) rolled back its net neutrality rules and then reaffirmed the rollback decision. The ruling requires AT&T, Comcast, Verizon, and other telecommunication companies and Internet Service Providers (ISPs) to treat all web traffic equally. This potentially sets the stage for other states to follow California’s lead.

In 2018, California enacted the California Internet Consumer Protection and Net Neutrality Act of 2018, which was its open-internet law, shortly after the Trump Administration eliminated national net neutrality protections. California state lawmakers created their own law to prevent ISPs from blocking, slowing down, or throttling lawful web traffic or charging for faster delivery of certain content or charging to prioritize content, and bans paid data cap exemptions (so-called “zero-rating”).  However, this law sparked lawsuits from the telecom industry and the Trump-era Department of Justice (DOJ). Originally, the DOJ sued California to prevent the law from going into effect, arguing that the FCC, not the states, had the exclusive authority to set net neutrality rules. The DOJ voluntarily dismissed its suit against California over its 2018 net neutrality law earlier in February. Meanwhile, the telecom industry argued that the federal government preempted the states from adopting their own net neutrality laws.

“We applaud the Court for affirming that California has the power to protect access to the internet, and that net neutrality is vital for healthcare, education, public safety and economic growth. This is an important victory for all Californians and for our democracy,” California Attorney General Xavier Becerra said in a press release. “The ability of an internet service provider to block, slow down or speed up content based on a user’s ability to pay for service degrades the very idea of a competitive marketplace and the open transfer of information at the core of our increasingly digital and connected world.” 

FCC Acting Chairwoman Jessica Rosenworcel tweeted that after the FCC’s net neutrality rollback, “states like California sought to fill the void with their own laws. Tonight a court in California decided that the state law can go into effect. This is big news for #openinternet policy.”

America’s Communications Association, CTIA, the NCTA and USTelecom –  the four telecommunication industry groups that filed the lawsuit – said they “will review the court’s opinion before deciding on next steps,” according to the Washington Post. “A state-by-state approach to Internet regulation will confuse consumers and deter innovation, just as the importance of broadband for all has never been more apparent.” They added, “We agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet.”

Judge Mendez found that the telecom industry is unlikely to prevail on the merits of the preemption arguments and that the industry has not shown irreparable harm, instead finding that public interest may be harmed if the law is enjoined. The judge stated that “This decision today is a legal decision and shouldn’t be viewed in (the) political lens. I’m not expressing anything on soundness of policy. That’s better left to Congress.”

The telecom industry groups are represented by Kellogg, Hansen, Todd, Figel & Frederick; MoloLamken; Lewis & Llewellyn; and Latham & Watkins. California is represented by its Office of the Attorney General.