The federal government’s net neutrality rules blinked out of existence in mid-June, the consequence of a deregulatory push by the new Republican majority on the Federal Communications Commission. So for the first time in more than a decade, there will be no efforts by the FCC — the federal body created to oversee communications companies — to stop service providers such as Comcast and AT&T that face no real competition in their local markets from influencing which websites and services succeed or fail online.
California lawmakers, predictably, are trying to fill the regulatory void with their own rules, and two Senate-passed net neutrality bills are now awaiting action in the Assembly. Senate Bill 822 by Scott Wiener (D-San Francisco) would adopt into state law key parts of the federal rules the FCC recently repealed, including the ban on internet providers blocking or interfering with legal content and services. SB 460 by Kevin de León (D-Los Angeles) would bar government agencies in California from contracting with any internet provider that did not abide by those restrictions.
Broadband access is a local service, using local utility poles or rights of way just like the traditional local telephone services that states regulate. But the internet is a global resource, and many of the companies providing broadband access are national in scope. So it would be far better for the federal government to establish one set of rules that applied throughout the country than for individual states to establish their own regimes.
The current FCC, however, argues that net neutrality rules prevent broadband providers from charging websites for better service, thus discouraging them from investing in their networks (ignoring how they encourage investment by the thousands of companies delivering content and services online by protecting them against discrimination by broadband providers) and claims that it doesn’t even have the authority to regulate broadband. That’s why more than 30 states are working on their own neutrality rules and incentives.
California should do the same. Yes, the FCC’s deregulatory order explicitly preempted state neutrality rules, but if the commission doesn’t have the authority to regulate broadband providers, it certainly doesn’t have the authority to stop states from doing so.
Opponents have argued that SB 822 would lead to much higher broadband fees by limiting “zero rating” — the practice of exempting certain sites or services from monthly data usage caps. But that’s not credible. The bill allows zero rating if the broadband provider doesn’t use it to favor its own services or for profit. That’s a sensible safeguard against anticompetitive behavior.
Critics also argue that Congress, not state legislatures, should set net neutrality rules, and they’re right. But there’s no point in waiting for Washington; in fact, passing these two bills could help prod Congress to act. In the meantime, they’ll protect the freedom and openness that’s crucial to innovation online.