Net neutrality’s last life kept intact by Supreme Court

The Supreme Court has rejected attempts by the telco industry and the Trump administration to completely erase net neutrality rules from the lawbooks.

With petitions filed by AT&T and various industry lobby groups to quash a ruling made in favour of the Obama-era net neutrality rules in 2015, a ruling which is the only glimmer of hope for net neutrality’s survival, the Supreme Court offered a lifeline. It seems rolling back net neutrality is not enough for FCC Chairman Ajit Pai, as the Republican is seemingly attempting to destroy any future attempts to reinstate the rules, which the 2015 District Court ruling holds.

While Pai and his cronies have effected taken the US back to the light-touch regulatory playing field of 2015, moves made by his predecessor Tom Wheeler to reclassify the internet service providers still stood. In passing net neutrality rules, Wheeler classified ISPs in the same league as telephony providers, and therefore under stricter regulation. This decision was upheld by the US Court of Appeals for the District of Columbia Circuit, which AT&T, NCTA, CTIA, USTelecom, and the American Cable Association were challenging here.

The presence of this case might not have any impact on the telcos today, though it would offer any future administration, who might be pro-net neutrality, a foundation to rebuilt the walls of regulation. Pai doesn’t just want to remove the rules, he wants to drive the concept of net neutrality to extinction with no prospect of return.

This ruling however, is a win for the net neutrality camp, a rare one which just might add enough momentum to sustain life until a change in administration.

“This is good news for net neutrality supporters,” said John Bergmayer, Senior Counsel at Public Knowledge, a pro-net neutrality lobby group which is also suing the FCC for the initial roll back. “The DC Circuit’s previous decision upholding both the FCC’s classification of broadband as a telecommunications service, and its rules prohibiting broadband providers from blocking or degrading internet content, remains in place.

“While the current FCC has repealed those rules – a decision Public Knowledge is currently challenging in court – this means that the previous decision is binding on the current FCC, and on the DC Circuit panel that hears the current challenge. Much of the current FCC’s argument depends on ignoring or contradicting the D.C. Circuit’s earlier findings, but now that these are firmly established as binding law, the Pai FCC’s case is on even weaker ground than before.”

The NCTA, the Internet and Television Association, is unsurprisingly miffed with the decision.

“It is not surprising that the Supreme Court declined to hear this case dealing with the Wheeler FCC’s 2015 Order,” the NCTA said in a statement. “Once the current FCC repealed the 2015 Order, almost all parties – including NCTA – agreed that the case was moot. Today’s decision is not an indication of the Court’s views on the merits but simply reflects the fact that there was nothing left for the Court to rule on.”

It seems the absence of two Republican Supreme Court judges was the deciding factor here. The newly, and controversially, appointed Justice Brett Kavanaugh removed himself from the process, having participated in the judgement of the original appeal, while Chief Justice John Roberts supposedly owns shares in AT&T.

For the pro-net neutrality supporters this was a critical win in the courts. Firstly, for the rules to be reinstated the classification as telcos as common providers is a must, though momentum was gathering for Pai and his cronies in the blood-thirsty mission.

This is not to say net neutrality camp is not without its support, but with President Trump adding his weight to the hunting trip, the pressure was starting to build. Another factor is precedent. The legal community use decisions made elsewhere in the industry for guidance, and there were a lot of decisions going against net neutrality over the last few months. Momentum was building and the issue is becoming increasingly politicised. The light was fading, though the 2015 decision being upheld is a win.

Whether this decision acts as a catalyst for net neutrality momentum and support remains to be seen, though California’s challenge to the FCC is still hanging in the balance. After signing its own net neutrality rules in State Law, despite contradictions with federal agency positions, California has decided to put the implementation of the rules on-hold until it has resolved its own lawsuit with the Department of Justice which argues the state has acted unconstitutionally.

Elsewhere around the US, various states are lining up their own, local, net neutrality rules. Washington State has already signed its own into law, while states such as Hawaii and New York are seemingly waiting for various rulings. While the approach might be broadly similar, there will be differences in each state. This patch-work of regulatory environment is something the US government is very keen to avoid, and it would turn into an operational disaster for the telcos.

In a separate lawsuit, 23 Attorney Generals throughout the US, including Maine, North Carolina, Rhode Island and Delaware, led by New York Attorney General Eric Schneiderman, are challenging the original 3-2 decision made by the FCC to roll back the net neutrality rules. The criss-cross of lawsuits, each of which relies somewhat on another decision and precedent, is starting to become complicated.

The dominos are certainly lining up across the US, each decision may send the entire stack into freefall. The weight of each ruling is getting heavier and heavier.

Vermont follows Califorina into the dock over net neutrality

The State of Vermont has been hit with a net neutrality lawsuit after passing a Senate Bill and signing an Executive Order forcing ISPs to follow the banned principles for government contracts.

The lawsuit, filed by the CTIA, cable industry lobby NCTA, telco lobby USTelecom, the New England Cable & Telecommunications Association, and the American Cable Association (ACA), calls into question requirements for ISPs to follow net neutrality rules should they want to be considered for government contracts. The lawsuit follows the same argument as the California case; it contradicts the Communications Act, the ‘Restoring Internet Freedom’ rules and two clauses in the US Constitution.
“This case concerns two interrelated attempts by the State of Vermont to unconstitutionally regulate the provision of broadband Internet service” the filing states.
“As the FCC has repeatedly recognized, Internet traffic flows freely between states, making it difficult or impossible for a provider to distinguish traffic moving within Vermont from traffic that crosses stateborders. Both the Supremacy Clause and the dormant Commerce Clause protect broadband Internet service providers from a patch work of inconsistent regulations that are impossible for them to comply with as a practical matter. The Court should declare that the Executive Order and S.289 are preempted and unconstitutional, and should permanently enjoin the Defendants from enforcing or giving effect to them.”

Senate Bill 289 was signed by Governor Phil Scott on May 22, while the Executive Order from Scott was signed in February. The telco lobbyists might be a bit slow off the mark, but this is a bit more of a complicated matter.

In California, and Washington State for that matter, net neutrality rules are being applied to the ISPs in every context. This is a much easier position for the telcos to push back against, though in the Vermont case it is only conditions for public sector contracts. The argument here is relatively nuanced; organizations should be allowed to apply their buying power to place requirements on vendors competing for lucrative contracts, but it does contradict rules set forward by the FCC.

Because this is not a blanket approach to net neutrality regulations, as is the case in California and Washington State, there is a better chance of the rules standing. The rules are being applied to specific relationships which lean on conditional approval and benchmarks for applicability. These are not unusual concepts in the world of procurement, but the net neutrality seems to be too contentious for any exceptions to be considered. The court will be interferring with market dynamics in Vermont, it is a delicate matter.

Another interesting idea is that of precedent. States such as Hawaii, New Jersey, Montana and Rhode Island have all passed similar rules, dictating ISPs wanting to compete for public sector contracts would have to adhere to net neutrality principles, and will be watching the outcome of this case closely. If Vermont wins there is precedent to maintain their position, however a win from the telco coalition will destroy the foundations.

Both cases, California and Vermont, come down to the old state versus federal battle ground and the interpretation of clauses in the Communications Act and the US Constitution. This is the bueaty and beast of the legal world, interpretation of the law and its implications means so much. The telco lobbyists do have a strong position though, especially considering the potential for a constitutional crisis.

Finally, perhaps the most interesting aspect of this on-going saga are the lawsuits themselves. In searching for a more light-touch regulatory landscape, the telco lobbyists are, ironically, seeking state intervention to maintain their position.

25% of Brits would ditch ISP if porn is blocked – MoneySupermarket

The net neutrality debate could be emerging on the UK horizon but the message here is don’t mess around too much; it wouldn’t take much for consumers to switch ISPs.

New research from MoneySupermarket has indicated UK consumers are pretty sensitive when it comes to the idea of the open internet. This is a debate which has certainly captured the imagination of the US, though the UK has largely been shielded by its inclusion in the European Union and rules being written in Brussels. With Brexit looming large, it is possible the UK would no longer be answerable to BEREC (Body of European Regulators for Electronic Communications) and free to decide its own course down the net neutrality road.

But the message from MoneySupermarket is simple; becoming too authoritarian on what content consumers can access and they will leave pretty sharpish. 64% of respondents would switch ISPs if blocks were put in place, with one in four specifying the blocking of porn as a reason to leave. Right now the status quo is holding solid, with the telcos largely only blocking requested and illegal content, though Brexit could change this.

By leaving the Union the UK is giving up the right to influence any new policies. Therefore, if it remains as part of BEREC it would have to comply with rules it has no influence over, Emily Thompson of MoneySupermarket points out. This would contradict the rationale of Brexit in the first place, though in the pursuit of a healthy relationship with Europe, the rules might have to be swallowed. Having the power to write the rules which govern the land is something which every government around the world would want, therefore staying in BEREC seems unlikely.

“While the dialogue regarding net neutrality in the UK is relatively low-key, it has controversially been repealed in the US, suggesting that it could become a much bigger issue once Brexit is finalised and we look at rethinking European legislation,” said Thompson. “For now, ISPs need to decide what’s in the best interest of their customers: eschewing the current net neutrality laws to reduce competition or getting on the side of the consumer and keeping the internet fair and equal.”

One of the areas which will come under scrutiny should the UK and BEREC part ways is net neutrality. We have already seen how divisive this debate has become in the US, with California introducing its own state level rules contradicting the FCC and potentially leading to a constitutional crisis. The scenario is slightly different in the UK, though the telcos will still want the opportunity to make more money.

Part of the reason net neutrality is such a big topic in the US is due to competition. A notable number of customers have limited options when selecting a broadband provider, which is not the case in the UK. Thanks to the UK being a small island and Openreach laying the foundations for broadband access, most customers have options when it comes to providers. ISPs cannot dictate the terms as much as across the pond and will have to be careful about blocking websites or promoting certain traffic for fear of losing customers to competitors.

However, executives might not be able to resist the temptation of making more money. The idea of a two-speed digital highway would be attractive to the telcos, monetizing the speed of delivery to the consumer. Experience is everything nowadays, and a slow-loading website might be enough for a consumer never to consider that curry house or wallpaper manufacturer ever again. We doubt the ISPs would go as far as holding the businesses to ransom by blocking websites who don’t pay or because a competitor pays for it, but it is a possibility.

Predicting which way the relationship with BEREC will go is a tricky one right now as it relies on the final deal the UK strikes with the European Union. We can’t imagine the UK Government will be happy about being told about how to regulate its own telco industry, irrelevant of how friendly the final terms are. It might not be too long before the net neutrality debate washes ashore; prepare for some propaganda from the telcos about why it is fair to create a digital toll-road to help fund the rollout of infrastructure.

Telco industry accuses California of violating US Constitution

It was only going to be a matter of time, but the telco industry is taking California to court over the decision to reinstate net neutrality rules.

While the rules prevent the telcos from making additional revenue through the creation of a two-lane communications highway, there is something bigger at stake here. In reinstating the net neutrality rules, California is not only questioning the validity of the Communications Act, the bedrock of regulations in the telco industry, but according to the coalition of associations suing the state, it is contradicting and undermining the US Constitution.

The American Cable Association (ACA), The Wireless Association (CTIA), The Internet & Television Association (NCTA) and USTelecom are the plaintiffs in the case, with California Attorney General Xavier Becerra is named as the defendant.

“This case presents a classic example of unconstitutional state regulation,” the filing reads. “The State of California has enacted SB-822, entitled the ‘California Internet Consumer Protection and Net Neutrality Act of 2018’, directly regulating the provision of broadband Internet access services (BIAS).

“This statute was purposefully intended to countermand and undermine federal law by imposing on BIAS the very same regulations that the Federal Communications Commission (FCC) expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations), despite the fact that both the FCC decision and the federal Communications Act of 1934, as amended (Communications Act), prohibit states from taking such action with respect to jurisdictionally interstate services like BIAS.”

According to the lawsuit, the State of California is not only violating the FCC’s 2018 Order, it is ignoring clauses in the Communications Act, which declare states cannot pass local regulations which contradict FCC rules, and also two important aspects of the US Constitution. Firstly,  article VI, clause 2, the Supremacy Clause which states the Constitution, federal laws made pursuant to it, and treaties made under its authority, dictate the supreme law of the US.

Secondly, the Commerce Clause declares no state can regulate conduct occurring outside of its borders. As California (or anyone for that matter) fully dissect what traffic originates, traverses and terminates in the state exclusively, California is indirectly imposing its own rules on other states, and potentially other countries.

In signing net neutrality back into the regulatory rulebook, Governor Jerry Brown has opened up a whirlwind of complications and consequences. As Chairman of the FCC, Ajit Pai has the authority to dictate the future of the telecommunications industry. This has been formalised in both the Communications Act and the US Constitution.

In splintering the rulebook, California is undermining the concept of US law and regulatory policy. Should the net neutrality rules be allowed to stand in California, the whole rule book and regulatory landscape could be shaken up; California would have set precedent in contradicting both the Communications Act and the US Constitution. This is of course dependent on whether you agree with the coalition’s interpretation of the documentation, but could this be the beginning of a constitutional crisis?

Of course, as we are in a time of incredibly combative politics in the US, the two parties could not be further apart. Pai is pushing for an internet which would be the digital equivalent of the wild-west, while California is promoting heavy handed regulation. The answer lies somewhere in the middle.

The telcos, remaining at arms-length from the conflict, are at the centre of this debate. Net neutrality prohibits the telcos from making money through prioritised traffic, and while we do not necessarily agree with this strategy, these are organizations which do need to be afforded the opportunity to make money. Regulating the industry as a utility won’t work, but neither will the hands-off regulatory position.

On one side, these are not utilities. Pricing regulations and strict practises can be imposed on other verticals, such as energy companies, because the vast majority of infrastructure has already been deployed. The world is expecting the telcos to spend billions deploying new infrastructure to enable the digital economy, though there are few opportunities to secure additional revenues outside of connectivity. The OTTs have destroyed revenue generators such as SMS and voice, but then lobbies government to block other means of making money. The balance of this ecosystem is not centred and it is only a matter of time before it cannibalises itself. How long will it be before the ability to rollout future-proof infrastructure gets scaled back due to a lack of revenue generation and profitability at the telcos?

However, the telcos are not exactly trust-worthy organizations. There are numerous examples were a lack of regulation or competition has led to higher prices for customers or monopolistic tendencies. These are companies which are under shareholder pressure to deliver on the promises of 5G and recapture the fortunes of yesteryear; the situation needs to be carefully managed to ensure the balance of power remains fair. Regulation is absolutely necessary in this industry.

Net neutrality over regulates the industry, while the Pai approach is not interventionist enough. There needs to be a middle ground, but it hasn’t been found yet. One thing is clear, the current climate of contradiction, undermining regulations and conflict is not healthy for the consumer in the US, or the US on the global stage.

State versus federal battle looms as California signs net neutrality into law

California Governor Jerry Brown has been busy; 31 state bills vetoed and 34 signed into law, including the controversial net neutrality rulings, kicking off another state versus federal battle.

State Bill 822, claimed to be the strongest net neutrality laws in the country, has officially been signed into law in the State of California, but it only took the US Department of Justice a few minutes to throw a wobbly. Before the army of busybodies and privacy advocates could even get their own press releases out, the Justice Department filed a lawsuit alleging that Senate Bill 822 unlawfully imposes burdens on the Federal Government’s deregulatory approach to the Internet.

“Under the Constitution, states do not regulate interstate commerce – the federal government does,” said Attorney General Jeff Sessions in the filing. “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 vigour. We are confident that we will prevail in this case – because the facts are on our side.”

Democrat FCC Commissioner Jessica Rosenworcel is clearly excited despite the legal complications:

After being passed back in February 2015, the appointment of FCC Chairman Ajit Pai saw a Republican led assault, with the telcos playing a supporting roles in the wings, on the rules. It didn’t take long for Pai to dismantle net neutrality, the vote to repeal the rules was won on 14 December 2017, though the backlash was almost immediate. Washington State was the first to pass local net neutrality rules, though with 23 Attorney Generals throwing their weight behind the cause it was only going to be a matter of time before other got involved. California is a different beast however, a worthy opponent of the US government.

With a population of roughly 39 million and a gross state product (GSP) of roughly $2.6 trillion, it is the largest in the US in terms of population and economic output. Globally, the economy is only smaller than the GDP of the US, UK, China, Germany and Japan. It is also home to Silicon Valley and the lobby power of the likes of Facebook, Google and Twitter.

While we do have sympathy with California and the internet giants, we do not feel net neutrality is the right way to go. Pai’s approach, reinstating the wild-west internet with the telcos as the tyrants of terror, is equally wrong. Both approaches are too extreme, the right answer lies in the middle, with the telcos afforded the opportunity to make money but still held accountable ensuring the consumer and businesses are not held to ransom. Taking the sensible, middle-ground is the logical approach, but set against the backdrop of such a combative political environment, it will be some time before fairness sets in.

But why is this such an important battle?

In its law suit, the Department of Justice is completely correct in stating California has overstepped its jurisdiction. No state should have the right to impose its own rules on another and the internet by definition is an interstate (international would be more accurate) playground. For these rules to be accepted on a legal basis in the US, California would have to ensure it was only applying the rules to traffic which originated, remained and terminated in California. Not only would this be pretty much impossible, but it would likely only account for a very small percentage of the total.

The stickiness is the clauses in the Communications Act, the piece of legislation which acts as the foundation of all communications orientated rules and precedents in the US. One clause dictates a state is entitled to draft its own rules, assuming it does not contradict that of the federal government. This is the very scenario which California has crafted. If SB 822 is allowed to stand it undermines the whole Communications Act; who is to say other states, businesses or advocacy groups could not use this example as a means to ignore other clauses, aspects of the Communications Act or precedent which has been set. In legalising the contradiction, the risk is to undermine the very basis of the communications industry across the country.

With California retaliating against the FCC’s decision to reverse net neutrality, the consequences are much more significant than they appear on the surface. This is now much more than a battle of technology regulations.

Pai declares California resistance to net neutrality demise as illegal

Speaking to an audience at the Maine Heritage Policy Center, FCC Chairman Ajit Pai has slammed California for even thinking about going against his holier-than-thou word on net neutrality.

It’s a divisive topic which doesn’t seem to want to go away, but Pai and his cronies can’t have imagined there would be this much of a backlash against the demise of federal net neutrality rules. Resistance was bound to be expected, though it now appears the disagreement is about to escalate into another state versus federal battle ground.

“The broader problem is that California’s micromanagement poses a risk to the rest of the country,” said Pai. “After all, broadband is an interstate service; Internet traffic doesn’t recognize state lines. It follows that only the federal government can set regulatory policy in this area. For if individual states like California regulate the Internet, this will directly impact citizens in other states.”

While this statement reeks of PR, Pai is not incorrect. The internet industry is a beast which rarely recognises international borders, take the Silicon Valley approach to taxes as an example, so how destructive will it be if all states take their own approach to regulating the digital highway? This is not to say Pai is correct in creating a digital wild west where the FCC has as much influence over the telcos as a dog over its tail, but in protesting the FCC’s position California is creating an immensely complicated landscape.

This will be of little concern to the righteous individuals leading the net neutrality charge, though the state versus federal undertone seems as if it is about to bubble to the surface.

“Among other reasons, this is why efforts like California’s are illegal,” said Pai. “In fact, just last week, the US Court of Appeals for the Eighth Circuit reaffirmed the well-established law that state regulation of information services is pre-empted by federal law. Last December, the FCC made clear that broadband is just such an information service.”

In the latest version of the Communications Act, the legislation which is the bedrock for all telecommunications regulation in the US, there is a clause which dictates any state-level rules which contradicts the position of the FCC are invalid. This is not to say states cannot put forward their own rules, but these rules can only impact activity in the state. As the internet is borderless, and it is almost unthinkable to contain traffic in an individual state, California cannot pass any new rules without undermining this clause.

And while California has received the attention of Pai in this speech, it is not the only state providing resistance. Washington is another which has passed its own regulation, though California’s hasn’t been signed into law just yet. California Governor Jerry Brown is reportedly yet to sign on the dotted line, perhaps delaying the state versus federal clash.

One question which is yet to be answered is what will happen if California is allowed to pass its own net neutrality laws. As it directly undermines the Communications Act, does that not invalidate the rest of the legislation? Will it open the door for a colourful quilt of dozens of different interpretations of different internet regulations? Precedent is a powerful trend in the legal community; if this contradiction is allowed, why shouldn’t other states have a go at creating localised laws in other areas?

This might be a net neutrality argument right now, though it has the potential to undermine the FCC authority everywhere else. Pai needs to tread carefully here.

FCC Chairman attacks social media giants calling for transparency laws

Ahead of this week’s interrogation of the social media giants by Senators, FCC Chairman Ajit Pai has penned his thoughts including the introduction of transparency laws to squeeze out explanations on how algorithms work.

While we do not agree with a lot of the dribble Pai spews onto the industry, here he does have a point. The operations of the social media giants have been shrouded in mystery for years, with most recent scandals demonstrating a need for more transparency. So many aspects of our lives are entwined in social media nowadays, the public interest case for transparency exceeds the protections afforded to private sector organizations.

“Consumers interact with these digital platforms on a daily basis,” Pai writes. “We get our news from them. We interact with our family and friends on them. But how do these companies make decisions about what we see and what we don’t? And who makes those decisions? We still don’t know.”

News, online expression, protection of freedom of speech and the sensitivities of users are all contentious issues. This is a very complicated topic as drawing a line on what can or cannot be said brings out a huge number of opinions, many of which are biased by experience or current situation. There is no right answer and there isn’t a wrong one either, but the argument is a moot point if no-ones understands how these decisions are being made. Transparency is key to informing the debate, and people do need to know how these algorithms work.

Of course, there is a sense of irony around Pai weighing in here. Firstly, let us not forget the FCC is responsible for regulating the networks which facilitate the digital economy. Cables in the ground, cell towers on hills and satellites in the sky. The agency is not responsible for regulating content or the social media giants. While Pai may consider himself an important man in the telco world, his influence on social media regulation and governance should be no greater than yours or mine.

Secondly, let’s not forget Pai has been working to remove the same transparency rules which are imposed onto the telcos. During the Obama administration, former FCC-Chairman Tom Wheeler imposed rules stating the telcos would have to seek explicit permission, an opt-in, to use personal information obtained from various records, including web browser history, to generate additional revenues. These rules were immensely unpopular with the telcos and one of Pai’s first jobs was to set out reversing the culture of transparency Wheeler had enforced.

Inconsistencies from the Trump regime and the puppets it commands is hardly news, but Pai is trying his best to push his luck here. Another brilliant example is criticising Twitter for violating net neutralities rules when banning content. Firstly, net neutrality rules are written for the companies who transport data, not those who own content platforms. And secondly, these are rules he supposedly disagrees with on a fundamental level and is trying to erase from the rulebook. Pai either doesn’t understand net neutrality or believes the people reading the post don’t.

A final irony to Pai’s intervention here is the actual intervention itself. As mentioned before, Pai is not responsible for regulating the social media giants, but seems to be seeking more of an active role in contributing to the debate. Since taking office, Pai has seemingly been on a mission to reduce the workload of the FCC, perhaps worrying his staff are overworked, creating a more light-touch environment and even suggesting some powers should be moved over to other agencies. Seeking additional responsibilities does not align with our experience of Pai.

Perhaps this is a strategic move from the White House as it is finding which puppets are most responsive. Pai has been instrumental in creating the light-touch regulatory environment sought by the Trump administration as well as battling the evil China treat. Perhaps orders from above are pushing the FCC towards new shores as Trump ramps up his battle with the social media giants.

Ultimately, we agree with Pai, just disagree with the way he has approached the argument. The social media giants do need to be held more accountable and offer greater levels of transparency. Social media is critical in numerous aspects of our lives from education on current events to authentication, these organizations can no longer hide behind the curtain, manically pulling levers, sending data to unknown corners of the web. More transparency is needed on how the business actually works.

The hearings with the House Energy and Commerce Committee start today, and we hope the Senators have done a bit more research for this interrogation. The last thing we need are rule-makers being outed as the technology-ignorant elitists they probably are. Let’s hope we don’t get another ‘Senator, we sell ads’ moment.

California defies FCC and Trump by passing tough net neutrality laws

The state versus federal argument looks like it is heading towards full-throttle as California passes what it describes as the toughest net neutrality laws in the country.

The FCC and President Trump’s administration are seemingly set on creating a regulation-free USA, though some states are not having it. California is the latest to demonstrate its mistrust of the US telcos, passing its own net neutrality laws.

“We passed the strongest net neutrality standards in the nation,” said State Senator Scott Wiener, who authored the bill alongside Senator Kevin de León. “The internet is at the heart of 21st century life – our economy, our public safety and health systems, and our democracy. So when Donald Trump’s FCC decided to take a wrecking ball to net neutrality protections, we knew that California had to step in to ensure our residents have access to a free and open internet.”

Looking at the broadest of explanations, Senate Bill 822 prohibits blocking websites, speeding up or slowing down websites or whole classes of applications such as video. Certain aspect of zero rating will also be banned, unfortunately this is where the bill becomes a bit more complicated. Zero rating services, applications or content will be allowed, providing ‘no consideration, monetary or otherwise’ is paid to the ISP by third parties. This is the sort of grey area which lawyers dream about, and will encourage the creative thinkers of the judiciary community to hunt down the loop holes.

While the Trump administration and the FCC have been consistently moving to eradicate every aspect of net neutrality from the rule books, this move from California could threaten to fuel the state versus federal jurisdiction arguments and power plays which we have seen in years gone. In the latest version of the Communications Act, the legislation which underpins all telecommunications regulations in the US, states any state-level rules which contradicts the position of the FCC are invalid. This would suggest Senate Bill 822 will have a short lived life, though should the dominos start to fall who knows what could happen. How many states would have to pass laws contradicting the Communications Act for something to be done?

Privacy-advocacy groups, coalitions of private businesses, attorney generals and more have been challenging the FCC dismantling of the rules, and the escalation of this saga seems to be entering into uncharted territories. We have been talking about a need for an opposition win in the net neutrality resistance, but whether this can topple some dominos remains to be seen.

This is not the first state wide resistance to the FCC’s attack on net neutrality, with Washington State passing House Bill 2282 in March, with the rules coming into effect on June 6. While there has been a lot of posturing and promises about defying the FCC position, that is until Wiener and his meaty balls stepped up. Perhaps this might encourage other states to move forward with their own ambitions.

That said, the telco lobbyists and supporter of more light-touch regulatory environments are powerful. Over the last couple of years, dozens upon dozens of proposed laws to increase user privacy and scale back the untouchable power of the telcos have been defeated by money. In Kentucky for instance, House Bill 332 failed. This bill proposed no telco or ISP would collect personally identifiable information from a customer as a result of the customer’s use of the telecommunications or internet services without the customer’s approval. In Nebraska, LR 453 would have allowed for an interim study to examine the impact of net neutrality, though this failed.

There are countless examples of the sticky telco fingers prodding various bills, which perhaps make the passing of both the Washington and California bills a bit more impressive. With the net neutrality debate continuing to rumble on, the conflict between the states and the White House will only escalate. If more states start passing net neutrality laws, ignoring federal guidance and the chain of command, what will be the reaction of central government?

Net neutrality resistance continues to gain PR support

There is usually resistance towards anything the ruling party does in the US, but net neutrality is proving to be a very bad smell for the Republicans as the Writers Guild of America West and small businesses join the push back.

FCC Chairman Ajit Pai has erased the rules and is now moving onto the classification of telcos as common utilities to kill off any return route, but that has not prevented a horde of legal cases. The Attorney Generals of 23 jurisdictions are making a nuisance of themselves, so are the internet companies with their own lawsuits, but we can’t imagine Pai suspected comedy and documentary writers would sign-up.

The Writers Guild of America West are the latest to adorn the chainmail, joining various advocacy organizations to file an intervenor brief to reinstate net neutrality:

“Last year, the Federal Communications Commission’s Chairman Pai repealed open Internet protections, leaving powerful Internet providers free to decide what content reaches viewers and how, harming content creators and consumers alike,” a statement reads.

“The decision to abandon those protections, which had been overwhelmingly supported by the public and upheld in court, was factually and legally unsound. The Writers Guild of America West has joined fellow intervenors in filing a brief in the D.C. Circuit Court of Appeals to challenge the FCC’s abdication of its responsibilities to protect competition and ensure a free and open Internet.”

While these group might not be the biggest heavyweights in the technology lobby, they can be public figures. The Writers Guild of America West (WGAW) is a labour union representing writers of motion pictures, television, radio, and internet programming; some of its members will have a notable presence and an emotional link to the general public. This is an opportunity for the opposition to whip the general public into a frenzy.

During the first days of the net neutrality annihilation, Pai’s opposition did an excellent job in rallying the general public in support of the rules. The FCC’s website was flooded with public comments, the original some were very dubious, as the removal of the rules was perceived as the end of days. Pai and his cronies did well to negate much of the negative PR generated through the chapter, but another resurgence of public support for net neutrality would not a welcome turn of events for the Republicans.

Elsewhere, research commissioned by insureon states the majority of small businesses are worried about the impact of net neutrality on their prospects. 48% of small business owners were not aware that the FCC repealed net neutrality, while of those who were aware, 63% were against the FCC’s moves.

The concern here is about preferential conditions for websites, as the removal of the rules opens up a pay-to-play environment for the speed at which websites can be loaded. 76% think the repeal could give big corporations an unfair advantage online, while 77% worry that they may not be able to afford to pay higher prices for faster loading times on their website. Website loading times might sound like a first world problem, but it will significantly impact customer experience and also website ranking results on search engines. The risk is online businesses could be held to ransom.

Again, these are not organizations which will swing the heaviest of punches in the lobby game, but there is a PR risk. Small businesses are supposedly the ‘backbone’ of the US economy, or so say shallow politicians chasing the lime light. Whether this attitude prevails under the pressure of campaign funding from multi-national corporations is suspect, though removing the rules which offer protections to the ‘backbone’ of the US economy from the money-grabbing telcos could be a disaster.

The net neutrality supporters in the US need a win in the legal system, and whipping up a public euphoria of support might well just be the momentum needed. While the resistance has been vocal and active, it has not slowed Pai’s gradual march towards net neutrality eradication. New ideas are needed.