The Washington PostDemocracy Dies in Darkness

California’s net neutrality bill is back and as tough as ever

A bronze statue of a bear is outside the governor's office in the building attached to the Capitol in Sacramento. (Rich Pedroncelli/AP)

California lawmakers will be moving forward with tough provisions in a legislative proposal that could turn into one of the most ambitious net neutrality laws in the country.

The announcement Thursday comes two weeks after members of the state assembly voted to water down the legislation, stripping out key parts of the measure, such as a ban on fees broadband providers could charge to websites as a condition of reaching Internet users. The move alarmed Internet activists who have argued that strong net neutrality rules are a vital consumer protection. The weakened proposal was widely seen as a victory for Internet providers who had lobbied hard against the new rules.

But now, the proposed legislation will have its stronger provisions restored. Elected officials from both chambers of the California statehouse struck an agreement on the matter Tuesday, said state Sen. Scott Wiener (D), author of one of two net neutrality bills moving through the state legislature.

“This will be the most comprehensive and the strongest net neutrality protection in the United States, where we are restoring what we lost when Donald Trump’s FCC obliterated net neutrality,” Wiener told reporters Thursday, referring to the Federal Communications Commission’s decision last year to repeal its national-level regulations for Internet service providers.

The California proposal goes further than the defunct federal rules. The revised bill will contain tougher language that not only bans Internet service providers from blocking and slowing websites, but, for example, it will also ban “abusive” forms of a practice known as zero-rating, the lawmakers said. Zero-rating occurs when an ISP exempts its own apps and services from customer data caps but counts other app usage against those monthly limits.

Not all zero-rating is anticompetitive, Wiener said. For example, he said, carrier programs that universally exempt whole classes of apps from data caps — rather than individual, specific services — could benefit consumers. Those types of zero-rating will not be banned under the California legislation.

The FCC launched a probe in 2016 into the zero-rating practices of all four national wireless carriers, concluding that AT&T and Verizon’s programs risked running afoul of net neutrality principles by unfairly favoring certain services over others. But months later, in 2017, the FCC under Republican control rescinded those findings and terminated the investigation.

Supporters of California’s strengthened legislation hailed Thursday’s announcement as a victory for consumers.

“Today is a great day for California Internet users as their state is now one step closer to enacting the strongest net neutrality law in the country,” said Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation.

USTelecom, a national trade association representing ISPs, said that it is committed to an open Internet. "Today’s amendments to SB 822 in California is yet one more indicator that consumers and providers alike deserve a permanent, federal, legislative solution rather than confusing, conflicting and ever-changing state-by-state rules,” said Jonathan Spalter, USTelecom’s chief executive.

California is not the only state to pursue its own version of the FCC’s net neutrality rules. As many as 29 states have introduced bills aimed at restoring the federal-level regulations on Internet providers, according to the National Conference of State Legislatures. Of those, three states have signed a bill into law: Oregon, Vermont and Washington.

But rather than lay out specific rules for Internet providers to follow, those states' net neutrality laws seek to shape ISPs' behavior using the power of government contracting rules. The laws require state offices to obtain Internet service only from providers that follow strict net neutrality principles — an approach that could effectively compel broadband companies to offer consumers the same terms.

California’s strategy goes further by defining outright bans on certain ISP practices, in what may be viewed as a direct challenge to the FCC. The agency has implied that it could sue any state that seeks to circumvent its own net neutrality rule repeal.

“We know that it will withstand a legal challenge,” said Assembly member Miguel Santiago, one of the lawmakers behind the effort.