A U.S. District judge has ruled that California officials should be able to enforce the state's net neutrality law. But what will the law bring about? And is our definition of "net neutrality" as good as it needs to be?
Experts agree California’s 2018 net neutrality law will likely become enforceable after a judge on Tuesday rejected the telecom industry’s argument for a preliminary injunction, but many questions remain about how the battle over the Internet might play out on the local and national level.
Tuesday’s decision from U.S. District Judge John Mendez has given momentum to a movement that has aimed to restore net neutrality through state laws ever since the Federal Communications Commission (FCC) in 2017 repealed policies that allowed the FCC to regulate Internet service providers (ISPs).
“Why shouldn’t a court be concerned if there is no regulation over ISPs?” Mendez said during Tuesday’s hearing, according to The Hollywood Reporter.
Technically, it wouldn’t be impossible for California’s law to face an injunction if the opponents to the law appeal Mendez’s ruling to the U.S. Court of Appeals for the Ninth Circuit and win favor in that context. However, Matt Wood, vice president of policy and general counsel for Free Press, said a successful appeal looks unlikely considering the strong logic that Mendez used in his ruling.
Wood added that it’s possible the cable and phone companies that oppose net neutrality could let California’s legislation take effect and instead prepare for a trial against the law.
But what might happen on the local level in California if the law indeed becomes enforceable? Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation (EFF), said he thinks there could be “some pretty high-profile litigation.” One thing that makes California's law unique is its emphasis on “zero rating,” which EFF defines as exempting “particular data from counting against a user’s data cap.” California’s law forbids zero rating.
Outside of those potential legal fireworks, Wood said California’s law would “give a forum” to local complaints, which may or may not translate to violations. Because the FCC hasn’t made transparency a requirement for broadband companies, everyday individuals or researchers have had to test for net neutrality themselves, so it’s difficult to predict what may transpire under an enforceable state law.
“We don’t know what they’ve been doing to the traffic behind the scenes because we haven’t had a perfect view into it,” Wood explained.
One possibility is that the very threat of the law will keep companies on their best behavior. This type of scenario, where the status quo is quiet, would be a “fine result,” from Wood’s standpoint.
Leonard Kleinrock, one of the fathers of the Internet, told the Los Angeles Times that net neutrality will drive innovation. Part of Kleinrock's view is that consumers are "deeply aware of, and subject to, opaque, confusing and unsettling variations to their Internet speeds." With a regulatory framework, companies would be compelled to advance their services.
"They will be far more motivated to innovate in ways that advance technology to provide better service at lower prices," Kleinrock reasoned. "Furthermore, it will encourage competition in that marketplace, which encourages further innovation."
Outside of litigation that may come down the road, Falcon thinks California’s law has important implications based on the fundamental questions it raises about states’ rights. The law was able to win bipartisan support in part because local firefighters claimed they had experienced throttling, which is when an ISP intentionally slows down a user’s Internet service, while fighting wildfires.
“Does the state have the authority to discipline that conduct? Does it have the ability to ban that effect?” Falcon said.
Kentaro Toyama, a W.K. Kellogg Professor of Community Information at the University of Michigan, has a different view on the law’s significance. While he considers this week’s news a victory for net neutrality advocates, he still questions whether net neutrality is defined well enough.
“The reality is that there is no natural definition of ‘net neutrality,’ because digital networks are artificial products designed by people,” Toyoma wrote in an email. “Bandwidth costs money — in infrastructure, energy, and maintenance. The question then becomes, who should pay for it, at what rates, and at what increments? We’re so used to ‘unlimited data’ plans that we think a fixed cost should get us unlimited access to everything at the same speed, but is it really fair that someone who downloads 100GB of data a month should pay the same as someone who only downloads 1GB? Yet, under many conceptions of net neutrality, that’s the expectation.”
From Toyoma’s perspective, we would have a fairer Internet if we were charged “whatever best approximates the relative cost of bandwidth consumed.” In practice, this would mean that downloading a film from another continent would cost more than reading an email from one’s neighbor. The key is making sure prices are reasonable and that companies aren’t able to carve out unfair advantages.
“As it is, big Internet companies are constantly jockeying for advantage online through strategic placement of data centers and network pipes,” Toyoma continued in his email. “That competition skews the Internet, well beyond the reach of common conceptions of net neutrality. If we want an Internet that’s fair, we have to start with a clear notion of fairness first, and then implement that in policy and infrastructure. The problem with net neutrality is that it confuses the status quo with what is ‘fair,’ even though considerable unfairness might already be embedded in the status quo.”
Falcon said ISPs are fighting a losing battle, as the notion that ISPs should be unregulated is becoming more unpopular, especially given the connectivity struggles that many have endured during the COVID-19 pandemic. Fewer and fewer people believe the Internet is a private luxury. As such, California’s legislation represents the most comprehensive state effort to address an issue that can affect people in their daily lives.
“It spells out more of the details and the kinds of practices that would be of concern to the regulators — and Internet users, too, for that matter,” Wood said.
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