Pixel Envy

Written by Nick Heer.

After Washington State Passes Net Neutrality Laws, California Proposes Its Own

Rachel La Corte of the Seattle Times, last week:

Washington became the first state Monday to set up its own net-neutrality requirements after U.S. regulators repealed Obama-era rules that banned internet providers from blocking content or interfering with online traffic.

[…]

The new law also requires internet providers to disclose information about their management practices, performance and commercial terms. Violations would be enforceable under the state’s Consumer Protection Act.

“But wait,” you may be thinking, “didn’t the FCC ban states from enacting net neutrality laws of their own, just as Comcast and Verizon asked them to do?”

Jon Brodkin of Ars Technica, in an article today about California’s tough new net neutrality proposal:

[Stanford law professor Barbara Van Schewick] argues that the FCC’s preemption claims are invalid.

“While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid,” she wrote. “According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.”

Nice.

The California proposal is remarkably strong, by the way. It isn’t just a copy of the FCC’s 2015 rules; it’s much more comprehensive than that, mandating tight restrictions on interconnection and zero-rating. Brodkin again:

Van Schewick said the California bill is notable for prohibiting ISPs from charging “access fees” that online services would have to pay in order to send data to broadband consumers. “None of the other [state] bills have done this and it’s one of the loopholes that ISPs will use (if it’s not closed) to extract payments from edge providers,” van Schewick told Ars.

From the reporting I’ve read in Ars and other publications, this bill ticks a lot of boxes for effective legislation of ISPs as de facto common carriers.