Net Neutrality on Trial…Again!

California’s net neutrality law got a reprieve from friendly California Judge John Mendez yesterday. Plaintiffs were seeking an injunction to keep the law from taking effect while litigation is pending, and the judge expressed concern that the injunction would leave the Internet unprotected:

“And [thanks to the recent repeal of federal net neutrality rules], there is no power by the FCC to regulate your clients. Why shouldn’t a court be concerned if there is no regulation over ISPs?”

I guess nobody told him the basics:

  • Net neutrality was only law for three of the 30 years the Internet was open to the public.
  • The FCC took no enforcement actions when it was in effect.
  • The FTC can apply sanctions against anti-competitive conduct by ISPs as long as net neutrality is not law.
  • States can’t regulate interstate commerce.
  • Most important: the Internet is doing just fine thank you very much.

It’s safe to say that the judge understands the issues about as well as the author of the California law.

The DC Circuit Will Not Be Pleased

If present trends continue, California’s net neutrality law is likely to end up in the DC Circuit Court. The only wild card in the mix is the Biden FCC. Acting Chairwoman Jessica Rosenworcel celebrated the DoJ’s decision to drop out of the California challenge:

I am pleased that the Department of Justice has withdrawn this lawsuit. When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws. By taking this step, Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land.

Is Rosenworcel a Federal Trade Commission mole, undermining the FCC’s authority from within? If California (and the other states, don’t forget) can govern the Internet just fine without the FCC’s expertise, what is the Commission good for?

She doesn’t seem to have thought through the implications of leaving the regulation of interstate commerce to the states, but then again it’s not her job to worry about such things.

Don’t Count on Congress

Judge Mendez, bless his heart, hopes Congress will make it all better:

“I think all parties agree that from a legal perspective the [Biden DOJ] decision didn’t effect the issues in this case,” he said. “But what it made clear was the elephant in the room — there are political overtones to this case.”

Mendez soon added, “This decision today is a legal decision and shouldn’t be viewed in the political lens. I’m not expressing anything on the soundness of the policy. That might better be resolved by Congress than by federal courts.”

That’s a fine sentiment, but we’ve been waiting for Congress to establish a regulatory framework for the Internet for 20 years (if not longer.)  The number one challenge for Internet regulatory law is the fact that new services and new abuses pop up faster than Hill staffers can wrap their arms around them, while their bosses still haven’t caught up with the 1996 Telecom Act.

Next Step

Yes indeedy, Congress needs to summarily dispense with ISP regulation and then write national laws for privacy and network security. And in the meantime they need to devise a formula for making Conservatives feel loved by social media (which they already dominate) while making Progressives feel validated.

And Congress needs to do all that with nobody really in charge, the 5G spectrum crunch unresolved, DoD trying to take over all the nation’s communications capability, and the US on the verge of falling behind on Artificial Intelligence in particular and innovation generally.

And it’s not like we’re riding the crest of a tsunami of economic vibrancy at the moment either, are we? The California court decision is small enough that the media could overlook it, but it may be one more straw on the world’s most heavily loaded camel.

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