Today, TechFreedom filed an amicus brief urging the Ninth Circuit to reverse an order allowing California’s new net neutrality law to go into effect.

In its 2018 Restoring Internet Freedom order, the FCC rolled back its 2015 net neutrality order, and returned Broadband Internet Access Service to being a lightly regulated “information service” under Title I of the Communications Act. Soon thereafter, California passed a net neutrality law of its own, one that in some ways matches the FCC’s 2015 Order. Earlier this year, a federal trial court rejected a group of broadband providers’ argument that the California law is preempted by the FCC’s 2018 order. 

Going a step further than the broadband providers, TechFreedom’s brief on appeal argues that the California law is preempted even if the FCC issues a new set of net neutrality rules.

“The problem is not simply that this state law conflicts with the current federal standards,” said Corbin K. Barthold, TechFreedom’s Director of Appellate Litigation. “Even if the federal government and a group of states all had identical net neutrality laws, the state laws would remain preempted by federal law. The problem, for the states, is that the Internet is inherently interstate (and international). State intervention will inevitably lead to different readings, in state courts, of the vast ambiguities that will exist in any net neutrality law.”

“Despite an apparent uniformity, at the level of individual words,” Barthold continued, “state laws will ultimately expose regulated entities to incompatible demands. There is no agreement, for instance, over the meaning of even basic terms in California’s law, such as ‘reasonable network management,’ ‘zero rating,’ and ‘category’ of content. Even the definition of ‘broadband Internet access service’ is disputed, with some groups arguing that that term must incorporate a broad and amorphous ‘public safety’ mandate.”

“The only way forward for net neutrality is for the rules to be set by Congress at the federal level,” Barthold concluded. “If and when that is done, a single, hierarchical federal court system can consider disputes over vague terms, resolve them, and ensure that the country is subject to a single, uniform body of Internet broadband regulation.”


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