The battle over net neutrality is heating up again. This week the Department of Justice asked a federal judge in California to block the state’s net neutrality law, contending that it countermands federal regulations.
The California law, SB 822, was passed in 2018 and prohibits broadband service providers from blocking, throttling, or offering paid "fast lanes" for certain content on their networks in the state. It was set to take effect last year, but immediately after passage the Trump administration sued, and California officials agreed not to implement the law until the legal challenges were settled.
“California’s attempt to nullify federal law should fail for two separate and independent reasons," reads an August 5 DoJ legal memorandum in support of its motion for a preliminary injunction blocking the state law. "First, under well-established principles of conflict preemption, a state law that conflicts with the purpose or objectives of a federal regulatory scheme is preempted,” the brief states. “Second, California improperly attempts to assert regulatory authority over an inherently interstate communications service in violation of the Communications Act of 1934,” DoJ attorneys argue, insisting that the federal government has authority over interstate communications.
The motion is the latest legal maneuver that follows the Trump administration’s controversial repeal of FCC rules. Last October, a federal appeals court upheld the legality of the FCC's repeal in another key court case—Mozilla et al v. Federal Communications Commission (FCC). However, in the 2-1 ruling, the court also held that the FCC couldn’t block states from imposing their own net neutrality rules—and, in fact, as many as 29 states, including California, have moved to do so.
In its filing this week, the DoJ portrayed the Trump administration's repeal of net neutrality protections as "an order that honored a historically bipartisan commitment to a free and open Internet.”
Observers, however, say that characterization is hardly accurate. In fact, the repeal was largely pushed by the telecom industry, and the FCC board's 3-2 vote was partisan, highly charged, and marred by a compromised public comment process in which investigators say millions of fake comments were posted in support of the FCC repeal. In May of 2018, the Senate voted 52-47 to block the FCC’s repeal under the Congressional Review Act, before the effort stalled in the then GOP-controlled House. Meanwhile polls have shown that more than 80% of the public supports restoring net neutrality protections (a level at which the issue has consistently polled).
Net neutrality remains a key issue for the library community. The American Library Association has been on the front lines of the net neutrality battle with the FCC, Congress, and the federal courts for more than a decade, working with other library and higher education organizations, as well as broad coalitions of net neutrality advocates. In Mozilla, ALA joined in filing an amicus brief in support of net neutrality. A range of other groups in the publishing ecosystem including authors groups, and dozens of media and public advocacy organizations, including PEN America, have also voiced support for restoring net neutrality protections.
California attorneys are due to file an answer to the DoJ's suit by September 16; Amicus briefs meanwhile are due August 19. Meanwhile, the lawsuit could be mooted depending on the outcome of the November elections. Democratic candidate Joe Biden has pledged to direct the FCC to restore net neutrality if elected.