After California passed what many consider to be the toughest protections in net neutrality this past weekend, the United States Department of Justice announced it will sue the state. California’s SB822 was signed by Governor Jerry Brown to reverse many of the net neutrality protections that the Federal Communications Commission (FCC) dismantled under agency Commissioner Ajit Pai earlier in 2018. In its lawsuit, the Justice Department argued that the bill “unlawfully imposes burdens on the Federal Government’s deregulatory approach to the internet” and that because the internet itself can be categorized as a function of interstate commerce, regulation of this area falls under federal jurisdiction.

“Under the Constitution, states do not regulate interstate commerce — the federal government does,” Attorney General Jeff Sessions said in a statement denouncing California’s bill. “Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order. We will do so with vigor. We are confident that we will prevail in this case — because the facts are on our side.”

However, because the FCC in the past has taken conflicting positions about its role in regulating the internet, this may be a harder argument to prove. Even though the FCC repeal of neutrality specifically included language that banned states from protecting consumers, the agency also said it had no power to regulate broadband providers when it repealed the 2015 Open Internet Order. “An agency that has no power to regulate has no power to preempt the states, according to case law,” Stanford University law professor Barbara van Schewick told Motherboard. “That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protections.” The FCC’s repeal of net neutrality is being challenged in court by 22 state attorney generals.

California passed SB822 after the FCC dismantled net neutrality protections despite growing bipartisan support in keeping the internet free and open. Under the California law, internet service providers must treat all web traffic equally, and the state places restrictions on zero-rating practices and discriminatory practices in the past that throttled Netflix connections. Zero-rating is a practice that can give an unfair advantage to larger companies. DirecTV streams on AT&T’s wireless network, for example, do not count against a user’s data caps because of zero-rating agreement between the satellite provider and its parent company AT&T.

The telecommunications industry led by USTelecom had urged Brown to veto the bill, leaving the matter of regulation to the federal government.

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