Mere hours after California’s proposal became law, however, senior Justice Department officials told The Washington Post they would take the state to court on grounds that the federal government, not state leaders, has the exclusive power to regulate net neutrality. DOJ officials stressed the FCC had been granted such authority from Congress to ensure that all 50 states don’t seek to write their own, potentially conflicting, rules governing the web.
The move by Attorney General Jeff Sessions opens another legal battlefield between the federal government and California, which the DOJ has taken to court already for trying to bypass the Trump administration’s policies around immigration and climate change. “The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order,” Sessions said in a statement.
In this case, the future of Internet regulation is at stake in a political war that’s pit telecom providers such as Verizon against tech companies, especially smaller ones such as the crafts site Etsy and the streaming service Vimeo. With other states considering net neutrality laws of their own, the DOJ "may want to try to take [California] to the Supreme Court if it goes that far,” said Carl Tobias, a law professor at the University of Richmond.
The coming legal clash may fuel partisan tensions just weeks before voters cast ballots in a deeply contested midterm election.
Emboldened by online activists, liberal organizers and tech start-ups, California lawmakers set about crafting their own net neutrality rules earlier this year. The proposal that the legislature adopted in September — which the governor’s office allowed to become law Sunday — prohibits Internet providers from blocking access to sites and services, slowing down web connections or charging companies for faster delivery of their movies, music or other content. Smaller web firms, in particular, worry that they do not have the resources to pay telecom giants to make sure their content is seen. The law also bans carriers from exempting apps from counting toward consumers’ data allowances each month if doing so might harm companies, especially start-ups.
California’s law is even tougher than the approach adopted in 2015 while President Obama was in office — which was scrapped after Republicans took over leadership of the FCC two years later. To Ajit Pai, the FCC’s current Republican chairman, such net neutrality protections proved heavy handed and had slowed the telecom industry’s investment in improving their broadband networks nationwide. “I think ultimately it’s going to mean better, faster, cheaper Internet access and more competition,” Pai told the Post as the repeal took effect in June.
But the FCC's efforts immediately put Washington on a collision course with the states. To start, more than 20 states filed lawsuits against the FCC, arguing that the agency had acted arbitrarily in repealing the net neutrality rules. Their efforts have won the support of companies like Mozilla and trade associations representing tech giants including Amazon, Facebook and Google, along with consumer groups like Free Press and Public Knowledge.
Many governors and legislatures also set about trying to craft policies preserving net neutrality within their borders, even though the FCC’s repeal order explicitly prohibited states from writing their own open-internet laws. That prompted the DOJ to file its lawsuit in a federal court in Sacramento, which seeks a preliminary injunction that will stop California’s net neutrality rules from taking effect on January 1.
“Not only is California’s Internet regulation law illegal, it also hurts consumers," Pai said in a statement. “The law prohibits many free-data plans, which allow consumers to stream video, music, and the like exempt from any data limits. They have proven enormously popular in the marketplace, especially among lower-income Americans. But notwithstanding the consumer benefits, this state law bans them.”