ISPs Challenge California Net Neutrality Law, Back SG Bid to Vacate DC Circuit 2017 FCC Ruling
ISP groups challenged California's net neutrality law Wednesday in the same U.S. district court where DOJ filed suit Sunday (see 1809210059). Separately, they backed the U.S. solicitor general's request to the Supreme Court to vacate the 2017 ruling of the U.S. Court of Appeals for the D.C. Circuit affirming the FCC's 2015 net neutrality order (see 1808030041). That case was scheduled for justices' Oct. 26 conference (in Daniel Berninger v. FCC, No. 17-498).
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The American Cable Association, CTIA, NCTA and USTelecom argue the California law was pre-empted by the current FCC's 2018 net neutrality rollback order and the Communications Act, and violated the U.S. Constitution's commerce clause, said a complaint seeking injunctive relief in the U.S. District Court for Eastern California. "We oppose California’s action to regulate internet access because it threatens to negatively affect services for millions of consumers and harm new investment," said a joint statement. They said they would work for "bipartisan legislation to create a permanent framework for protecting the open internet."
“This suit was brought by power brokers who have an obvious financial interest in maintaining their stronghold on the public’s access to online content," said California Attorney General Xavier Becerra (D). The state "has the right to exercise its sovereign powers under the Constitution and we will do everything we can to protect the right of our 40 million consumers to access information.”
Net neutrality advocates played down the ISP challenge. "The industry suit is entirely predictable and changes nothing," emailed Harold Feld, Public Knowledge senior vice president: "All this is just show tricks until the D.C. Circuit makes its decision." State and local officials have asked that circuit to reverse the FCC's 2018 order pre-empting inconsistent state and local actions (see 1808210010). Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor, expects industry and DOJ suits to be consolidated. "Whether or not the [district] court grants an injunction in the new cases, it is quite likely that they will be held in abeyance pending the outcome of the DC Circuit litigation," he emailed.
The four ISP groups asked the Supreme Court to grant their cert petitions and vacate the D.C. Circuit's 2017 affirmation of the 2015 FCC order, but remand the case for dismissal as moot in light of the agency's 2018 rollback. ACA, CTIA and USTelecom filed jointly and NCTA filed individually in support of the SG's request, . Internet entrepreneur Berninger Sept. 27 asked the high court to grant his cert petition on its merits. Net neutrality groups asked the justices Sept. 14 to deny all cert petitions (see 1809140041).