Yesterday, the California Senate approved legislation that would require Internet service providers (ISPs) in California to follow the now-repealed 2015 Open Internet Order. While well-intentioned, the legislators sadly chose an approach that is vulnerable to legal attack.

The 2015 Open Internet Order from the Federal Communications Commission provided important privacy and net neutrality protections, such as banning blocking, throttling, and paid prioritization. It is important for states to fill the void left behind by the FCC’s abandonment of those protections.

States are constrained, however, because federal policy can override, or “pre-empt,” state regulation in many circumstances. State law that doesn’t take this into account can be invalidated by the federal law. It’s a waste to pass a bill that is vulnerable to legal challenge by ISPs when strong alternatives are available.

In a letter to the California Senate, EFF provided legal analysis explaining how the state can promote network neutrality in a legally sustainable way. Unfortunately, SB 460, the legislation approved by the California Senate, is lacking many of the things EFF’s letter addressed.

Better Approaches Left Behind by SB 460

Today, California spends $100s of millions on ISPs, including AT&T, as part of its California broadband subsidy program. The state could require that recipients of that funding provide a free and open Internet, to ensure that taxpayer funds are used to benefit California residents rather than subsidizing a discriminatory network. This is one of the strongest means the state has to promote network neutrality, and it is missing from SB 460.

California also has oversight and power over more than 4 million utility poles that ISPs benefit from accessing to deploy their networks. In fact, California is expressly empowered by federal law to regulate access to the poles and the state legislature can establish network neutrality conditions in exchange for access to the poles. Again, that is not in the current bill passed by the Senate.

Lastly, each city negotiates a franchise with the local cable company and often the company agrees to a set of conditions in exchange for access to valuable, taxpayer-funded rights of way. California’s legislature can directly empower local communities to negotiate with ISPs to require network neutrality in exchange for the benefit of accessing tax-payer funded infrastructure. This is also not included in the current bill.

States Should Put Their Full Weight in Support of Network Neutrality

Any state moving legislation to promote network neutrality should invoke all valid authority to do so. At the very least, California should view the additional legal approaches we have recommended as backups, to be relied upon if the current proposal is held invalid by a court.

If SB 460’s approach to directly regulating ISPs is found to be invalid, ultimately all the legislation does is require state agencies to contract with ISPs that follow the 2015 Open Internet Order. While an important provision, it can already be required with a stroke of the pen tomorrow under a Governor’s Executive Order much in the same way as Montana and New York. And while the 2015 Open Internet Order was a good start, why not bring to bear all the resources a state has to secure such an important principle for Californians?

EFF hopes that subsequent network neutrality legislation such as Senator Wiener’s SB 822 can cover what is missing in SB 460 or that future amendments in the legislative process can bring the full weight of the state of California to bear in favor of network neutrality. Both options remain available and it is our hope that California’s legislators understand that the millions of Americans who are fighting hard to keep the Internet free and open expect elected officials that side with us to deploy their power wisely and effectively.

The importance of keeping the Internet free and open necessitates nothing less.