WASHINGTON D.C. — Yesterday, California Governor Jerry Brown signed S.B. 822. That bill has been called the toughest of a series of proposed state laws or gubernatorial orders that attempt to replicate, or even go beyond, the net neutrality rules that were issued by the Democratic FCC in 2015 and that were largely withdrawn by the Republican FCC this year. On Friday, TechFreedom had sent a letter to Governor Brown urging him not to sign the law, because the U.S. Constitution sharply limits states’ ability to regulate Internet services. Shortly after Governor Brown signed the law on Sunday, the Department of Justice filed suit to block the law.

California is wasting everyone’s time and taxpayers’ money by provoking an entirely predictable legal battle over obviously unconstitutional legislation,” lamented Berin Szóka, President of TechFreedom. “The Internet is an inherently interstate medium — indeed, it transcends even national borders. The states have no business regulating such services. Both the Communications Act and the FCC’s 2017 Restoring Internet Freedom Order (RIFO) preempt state regulation of broadband services, and even if they did not, such regulation would violate the Dormant Commerce Clause by impairing interstate services. The RIFO is right: ‘it is impossible or impracticable for ISPs to distinguish between intrastate and interstate communications over the Internet or to apply different rules in each circumstance.’ That’s why TechFreedom will be supporting the DOJ’s lawsuit as an amicus curiae.”

“Ironically, California’s legal position would open the door for other states to regulate the Internet services that have made California the digital capital of the world,” continued Szóka. “Today, it’s broadband, but the same legal principles will be at stake in fights over state regulation of ‘edge’ services. A hodgepodge of inconsistent state laws will hurt the smallest companies. And besides, does anyone in Sacramento really want state legislators in Alabama or Texas writing laws that govern California companies? California should be leading the fight against state-by-state regulation of the Internet, not for it. California and other states can already enforce their consumer protection and competition laws against broadband companies. These generally applicable laws, which are consistent across states, do not raise the same federalism concerns that net neutrality-specific laws would.”

Even the strongest supporters of net neutrality should recognize that state-by-state regulation of the Internet is a terrible idea,” concluded Szóka. “They should focus their efforts on building bipartisan support for federal legislation — the only way this debate will ever be resolved.”

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Szoka is available for comment at media@techfreedom.org. Find or share this release on our website and on Twitter. For more information on the issue, take a look at some of our recent work:

  • Our working draft legal memorandum analyzing the constitutionality of state net neutrality laws
  • Our statement explaining why Rep. Mike Coffman’s net neutrality legislation won’t resolve the debate
  • Our statement on our letter about why CRA won’t restore Title II
  • Our statement on the 2017 Blackburn bill: “Republicans Propose Net Neutrality Again. Will Democrats Engage?”
  • Only Congress, not the FCC can fix net neutrality, Szóka’s op-ed in WIRED
  • FCC Commissioner Brendan Carr interview on Tech Policy Podcast
  • FCC Chairman Ajit Pai interview on the Tech Policy Podcast
  • Pai Brings Unprecedented Transparency to Open Internet Proceeding, Graham Owens’ blog post
  • How net-neutrality advocates would let Trump control the Internet, Szóka’s op-ed in the Washington Post

The Feds lost on net neutrality, but won control of the Internet, Szóka’s op-ed in WIRED