A victory for the federal government could dramatically constrain the ability of states to regulate broadband companies within their borders, some legal experts say.
At issue are California’s new rules — set to take effect Jan. 1 — banning Internet providers from blocking or slowing down websites. Although the carriers have said they are not interested in degrading the speed of Internet traffic, the legislation goes further, prohibiting them from charging websites special new fees or selectively exempting favored apps and services from customer data caps.
Wednesday’s suit by four groups representing cable and Internet providers — USTelecom, the American Cable Association, CTIA (wireless industry), and NCTA (broadband and pay television industries) — echoes the Justice Department in alleging that the California law conflicts with federal regulations and should be overturned. The Federal Communications Commission in June officially deregulated broadband providers by taking its own net neutrality rules off the books, dismaying consumer advocates.
But the industry suit expands the attack on California’s law, known as SB-822, by asserting that it seeks to regulate Internet providers beyond state lines, in violation of the Constitution.
Because Internet traffic typically bounces across servers in various states before arriving at a final destination such as your phone or PC, Internet access is considered interstate commerce, according to the suit. As a result, it says, jurisdiction over Internet providers belongs to the federal government — not the states.
“SB-822 violates the ‘dormant’ or ‘negative’ Commerce Clause of the United States Constitution by regulating conduct occurring wholly outside California’s borders,” the suit reads.
On Wednesday, California Attorney General Xavier Becerra — who is in charge of defending the state — slammed “power brokers” with “an obvious financial interest in maintaining their stronghold” over consumers' Internet experience.
“California, the country’s economic engine, has the right to exercise its sovereign powers under the Constitution,” he said in a statement, “and we will do everything we can to protect the right of our 40 million consumers to access information by defending a free and open Internet.”
Some experts said a ruling on the dormant Commerce Clause could have broad implications.
“If that second argument is right, it calls into question every state law that regulates the Internet,” said Jonathan Mayer, a former chief technologist in the FCC’s enforcement bureau.
Not only could it imperil the net neutrality laws of other states, such as Washington, but it also could affect states' efforts to regulate the privacy policies of Internet providers and even the business practices of other industries.
Other legal analysts said that it was likely the industry suit would be merged with the Justice Department’s challenge, and that the U.S. District Court for the Eastern District of California might issue an injunction against the state law until a number of other suits involving net neutrality are resolved.
“It’s the complaint stage, so they have very little to lose by throwing everything in,” Andrew Schwartzman, a lecturer in public-interest law at Georgetown University, said of the industry suit. “It closely tracks the DOJ case, but they’re filing because they have their own interests that may run broader.”