This California Bill Would Bring Back Net Neutrality With A Vengeance

On December 14, the FCC voted to abolish net neutrality regulations. The same day, California state senator Scott Wiener released a video saying that he wanted to revive those policies in state law. Today, Wiener’s bill, SB822, hits the California legislature, with co-sponsors–all of whom are Democrats–in the Senate and Assembly. If the legislation passes, and allies in states like New York and New Jersey also introduce bills, a huge chunk of the U.S. population and economy would be subject to regulations that the federal government adamantly opposes. They would join Washington State, whose governor signed a tough net neutrality law on March 5.

This is California’s second net neutrality bill of the year. A shorter one passed the state senate at the end of January and will move to the Assembly in late spring. But its sponsor, senate president Kevin de Leon, will be gone by then as he mounts a campaign for the U.S. Senate.

Wiener, who wants to merge his legislation with de Leon’s, says that his bill “covers a wider range of behaviors and uses, a broader range of tools to get ISPs to adhere to net neutrality.”

While Washington State’s law runs about 4 pages, Wiener’s proposal runs 11 (though with a lot of repetition). It includes the big-three prohibitions: against blocking and slowing down traffic for consumers, or providing extra bandwidth if content providers like Netflix or Amazon pay extra.

Wiener’s bill digs into more arcane matters that the Obama-era FCC’s now-abolished 2015 policy included. It tackles the “zero-rating” programs, such as T-Mobile’s Binge On, which exempt some sites, apps, and services from monthly data caps. Obama’s FCC allowed Binge On, since T-Mobile continued welcoming new video services. California’s law seems to require blanket access for all similar apps without a wait for the ISP to add them. “It can be allowed if it is about a certain class [of content], like you could have when you’re doing games,” says Wiener about zero-rating. “If they say we’re going to apply it to a category, not any one product, and all comers, then it’s not automatically illegal.”

The bill also takes on fees for “edge providers”—big content sources like Netflix. The net neutrality debate took off in 2014 when major ISPs such as Comcast started throttling edge providers’ access to customers. “They wanted to stop Netflix,” says Dave Schaeffer, founder and CEO of internet backbone provider Cogent Communications, who saw it happening. (Netflix ultimately agreed to pay ISPs extra access fees.)

In addition to simply prohibiting these and other practices under consumer law, Wiener throws a mess of roadblocks in the way. ISPs that don’t follow the requirements won’t get state contracts and will have to refund contract payments if they go back on their word. ISPs that also offer cable TV could lose their cable franchises, and executives who falsely claimed to follow net neutrality rules could be charged with perjury.

One bright spot for ISPs in the legislation is a pledge that California will not regulate them as public utilities akin to power companies. That prospect, more than anything else, is what scared ISPs about the FCC’s now-defunct net neutrality rules.

“The one thing that a lot of people agreed on,” says Wiener, “from the ISPs to the Electronic Frontier Foundation to a number of my colleagues, was that we don’t want the [California Public Utilities Commission] to become the ground regulator of the internet.”

A Growing Movement?

Wiener’s bill has until about the end of May to make it through the California Senate, and then till about the end of August to get through the Assembly—both controlled by Democratic majorities. Democratic governor Jerry Brown hasn’t said whether or not he will sign it should it come to his desk.

When Wiener announced his plans, he also said that he’d be collaborating with colleagues in other states. “I’ve spoken with legislators from New Jersey, New York, Tennessee, and North Carolina,” he says. “We welcome them to take whatever they want from the work we’ve done.” He seems to have the most hope for New Jersey, another Democrat-dominated state.

All of this would be in defiance of the FCC, which claims that its order abolishing net neutrality regulations preempts state efforts to create their own. But that will be harder if the numbers grow. “The more states that follow Washington State’s lead, the more obvious it should be that there is wide bipartisan support for net neutrality, no matter what Congress or the FCC seem to think,” says Washington state representative Drew Hansen, who wrote the state’s bill. He’s yet to hear from the FCC.