Net Neutrality Makes Comeback In California; Lawmakers Agree To Strict Rules

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Above Photo: Getty Images | joe chan photography. California State Capitol building in Sacramento.

After compromise, nation’s toughest net neutrality bill back on track.

A California net neutrality bill that could impose the toughest rules in the country is being resurrected.

The bill was approved in its strongest form by the California Senate, but it was then gutted by the State Assembly’s Communications Committee, which approved the bill only after eliminating provisions opposed by AT&T and cable lobbyists. Bill author Sen. Scott Wiener (D-San Francisco) has been negotiating with Communications Committee Chairman Miguel Santiago (D-Los Angeles) and other lawmakers since then, and he announced the results today.

Wiener said the agreement with Santiago and other lawmakers resulted in “legislation implementing the strongest net neutrality protections in the nation.”

A fact sheet distributed by Wiener’s office today said the following:

Under this agreement, SB 822 will contain strong net neutrality protections and prohibit blocking websites, speeding up or slowing down websites or whole classes of applications such as video, and charging websites for access to an ISP’s subscribers or for fast lanes to those subscribers. ISPs will also be prohibited from circumventing these protections at the point where data enters their networks and from charging access fees to reach ISP customers. SB 822 will also ban ISPs from violating net neutrality by not counting the content and websites they own against subscribers’ data caps. This kind of abusive and anti-competitive “zero rating,” which leads to lower data caps for everyone, would be prohibited, while “zero-rating” plans that don’t harm consumers are not banned.

A ban on ISPs charging websites and online services for data cap exemptions is also being preserved in the compromise, Wiener’s office told Ars.

A separate bill that was also included in the negotiations “will be amended to focus on requiring ISPs that enter into state contracts adhere to net neutrality principles,” the fact sheet said. “This provision ensures that public entities only expend taxpayer funds on contracts with ISPs that comply with California’s comprehensive net neutrality protections.”

The bills still need approval from the full state legislature by August 31 and need the signature of Governor Jerry Brown.

Compromise has all key provisions

According to Wiener, the compromise version has all the same protections as the version of the bill that passed the Senate. But the compromise version is structured differently in order to satisfy Santiago’s concern about making sure the rules will stand up in court, Wiener told Ars.

“He wanted a bill that reflected the protections of [the FCC’s] 2015 order and is defensible in court,” Wiener said. “Those are two things I wanted as well. It was just a matter of having a product that we both agreed got us there.”

The new text of the bill won’t be released until August 6 because the legislature is heading into a month-long recess, Wiener said. “It’ll look different in terms of the way it’s structured or ordered, but all of those key protections will be back in the bill,” he said.

Wiener’s office told Ars that the compromise version will remove a ban on “application-specific differential pricing,” which the bill defined as “charging different prices for Internet traffic to customers on the basis of Internet content, application, service, or device, or class of Internet content, application, service, or device, but does not include zero-rating.”

That means an ISP could sell add-ons to data plans that let customers buy extra data just for a certain type of website or online service. A customer’s base data plan would still allow browsing to any kind of website or service in this scenario, but the package of extra data could be restricted just to social media sites, or some other category, Wiener’s office explained. The effect would be similar to zero-rating, but Wiener’s office said it wouldn’t involve exempting any traffic from the customer’s base data plan.

Wiener was willing to drop the ban on application-specific differential pricing from his bill in part because it wasn’t in the original FCC rules that his legislation was modeled on, his office told Ars. Other language is being changed to better match the FCC rules, Wiener’s office said.

Santiago told Ars that the compromise bill is “still being written.” He said that some of the definitions are being changed, but he did not elaborate on what the specific changes are. “We always agreed on the core protections,” Santiago said.

Santiago, Wiener, and other lawmakers appeared at a joint press conference today. “We are talking about introducing the strongest net neutrality bill in the nation,” Santiago said.

Santiago said he urged both Democratic-leaning and Republican-leaning states to pass similar legislation. “There [are] a lot of blue states in the country—we expect them to stand up and join us in this fight and pass measures that are equally strong,” he said. For red states, “I recommend that you follow suit or we are going to flip some of those states,” he said.

If the State Assembly passes the bill, the Senate would be asked to approve the amended version, and it would then head to the governor for his signature.

ISPs will likely sue

California is likely to face lawsuits from Internet providers, who would argue that FCC action preempts states from imposing their own net neutrality rules.

“I think the FCC preemption is not valid,” Wiener told Ars, saying that California has authority to protect consumers and business from unfair business practices.

Wiener said he believes the earlier version of the bill was just as defensible in court as the compromise version, but he agreed to restructure it in order to get a deal that maintains the core protections.

Wiener has not been swayed by arguments from Internet providers who claim that net neutrality rules aren’t necessary.

“They want us to just trust them to protect net neutrality, and I think history shows that we can’t just have a leap of faith,” Wiener said. “The ISPs have violated net neutrality in the past and they will in the future. The economic pressure will be too great for them not to violate net neutrality, so we need to have some rules in place.”

Wiener said he was able to reach a compromise with other lawmakers by “talking through every issue in a very in-depth way.”

Wiener expects the compromise to have good odds of passage. “Now we are unified behind it, so there’s a lot of strength behind this bill,” he told Ars.

There will be a tough battle, however, Wiener said at the press conference. “This is going to be a fight,” he said. “The telecom and cable companies—they fight hard, they are effective, and we are confident they will oppose this strongly until the end.”