By: Christopher Kinney
After months of speculation and significant lobbying on both sides of the aisle, the Ninth Circuit Court of Appeals upheld California’s net neutrality law. While the decision does not signal an end to the debate over the enforceability of the state’s law, it does allow the law to stay in effect and signals to the rest of the nation the judiciary’s willingness to uphold similar legislation. Unsurprisingly, internet and broadband providers (“ISPs”), disagree with the decision and have ramped up their efforts in other states to dissuade legislators from following California’s lead.
Net neutrality mandates that all data traffic on a particular network is treated equally, meaning that ISPs are prohibited from blocking, slowing down or speeding up the delivery of specific online content at their discretion. For example, AT&T users in California have been allowed to stream unlimited amounts of HBOMax content without affecting their data plans, but Netflix streamers are not afforded the same luxury. The goal of net neutrality is to allow consumers access to an equal amount of content from all data providers, regardless of their internet provider or cellular network.
Net neutrality was put in place at the federal level back in 2015 but had a minor national effect because it was quickly rolled back by the Trump Administration. Prior to the Ninth Circuit’s decision, it remained unclear how the Biden Administration planned to restore federal regulation on net neutrality, but now it appears that steps similar to those taken by the Obama Administration are a top priority. If there is a resurgence in federal oversight of net neutrality, the opposition to California’s state law will have a stronger case for repealing due to federal preemption. Preemption occurs when federal and state law conflict, which is almost always decided in favor of the federal law due to the Supremacy Clause of the Constitution.
These arguments do not go without merit and are very similar to the arguments made by advocates of national data privacy and security laws. Allowing each state to have its own individualized and customized approach to net neutrality will lead to an enormous burden on the ISPs to stay compliant in each state. While, in theory, additional state protections would grant consumers with equal access to data despite the platform they use, in practice, internet providers have taken steps that will actually make it harder for consumers to access their desired data. ISPs have rescinded partnerships with streaming platforms that allowed consumers to exceed their monthly data limits and offset the lost revenues from these defunct partnerships by increasing the prices for unlimited data plans.
Net neutrality supporters are thrilled with the Ninth Circuit’s decision and have labeled it a small step forward in what will inevitably be a long-heated battle over national implementation of similar legislation. Proponents of a national act have called on President Biden to ramp up the administration’s efforts to reimplement net neutrality protections that existed under the Obama Administration and have used this most recent victory as a signal for national support.
The Obama Administration pushed hard for a free and open internet and implemented a regulatory plan aimed at addressing the everchanging internet. The Administration considered broadband service a utility under the Communications Act and gave regulatory control of internet providers to the Federal Communications Commission (“FCC”). In doing so, the FCC enacted rules targeting unlawful blocking, throttling, and paid prioritization by service providers. The Trump Administration challenged the constitutionality of the Obama-Era rules, but repealed them after being denied cert by the Supreme Court.
The Biden Administration has taken significant steps to bolster its efforts to pass a national net neutrality law, most recently appointing Tim Wu to the White House Economic Council. Wu is a strong supporter of a strong stance on net neutrality and is credited by many for bringing the idea to the national stage.
Opponents of net neutrality are discouraged by the Ninth Circuit’s decision. While there are many who oppose any form of net neutrality, what is most troubling to these opponents is the state-by-state framework to the issue that appears to be taking shape. In a statement responding to the Ninth Circuit’s decision, AT&T stated that “[a] state by state approach to ‘net neutrality’ is unworkable.” Core to their displeasure is the belief that “[a] patchwork of state regulations, many of them overly restrictive, creates roadblocks to creative and pro-consumer solutions.”
A national Net Neutrality act would likely mark an end of state-by-state net neutrality legislation, allowing for more uniformity in regulating ISPs and providing consumers with more clarity on how their data is managed. While a national law is not ideal to opponents of net neutrality, there is no question that it would be a more welcomed alternative to the state-by-state approach that is currently in place.
While the current hope is for the Biden administration to act at the national level, proponents of net neutrality still fear that the next Republican administration will act similarly to the Trump administration and repeal net neutrality regulation that is put into effect. This key concern amongst net neutrality advocates has motivated them to continue to put pressure on the state legislators to pass their own versions of net neutrality laws to supplement whatever federal regulation emerges in the next few years.
Student Bio: Christopher Kinney is a second-year law student at Suffolk University Law School. He is a staffer on the Journal of High Technology Law. Prior to law school, Christopher received a Bachelor of Arts Degree in History from Boston College and spent several years working for one of the largest technology providers in the United States.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
