California Puts Net Neutrality Rules on Hold Pending Federal Court Cases
California agreed not to enforce its new net neutrality law (SB-822) while appeal of the FCC’s order rescinding the 2015 national rules is pending before the U.S. Court of Appeals for the D.C. Circuit and possibly the Supreme Court. The state agreed to delay enforcement in a pleading with the U.S. District Court for Eastern California. The state was scheduled to respond to the motion for a preliminary injunction Friday, but the parties informed the judge they had reached a deal. ISP groups (see 1810030036) and DOJ (see 1809210059) challenged the California law in cases before that district court.
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The Supreme Court was scheduled to hold a conference Friday on the U.S. solicitor general's request it 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). The case, Daniel Berninger v. FCC, No. 17-498, wasn’t on the list of three cases on which the court granted cert Friday.
“Further proceedings in both United States v. California and American Cable Association v. Becerra … shall be stayed until the later of the following: (a) the D.C. Circuit issues its opinion in the petitions for review of the FCC Order currently pending in Mozilla Corp. v. FCC … and the period for seeking further review from the D.C. Circuit and the U.S. Supreme Court has expired; or (b) a final decision has been issued by the D.C. Circuit or the U.S. Supreme Court in response to any petition for rehearing or certiorari, either denying such petition or issuing a final decision,” said the court pleading filed Friday (in Pacer, No. 2:18-cv-02660).
“This substantial concession reflects the strength of the case made by the United States earlier this month,” said FCC Chairman Ajit Pai. “It also demonstrates, contrary to the claims of the law’s supporters, that there is no urgent problem that these regulations are needed to address. Indeed, California’s agreement not to enforce these regulations will allow Californians to continue to enjoy free-data plans that have proven to be popular among consumers.”
“I very much want to see California’s net neutrality law go into effect immediately, in order to protect access to the internet,” said SB-822 author Sen. Scott Wiener (D) in a statement. “Yet, I also understand and support the Attorney General’s rationale for allowing the DC Circuit appeal to be resolved before we move forward to defend our net neutrality law in court. After the DC Circuit appeal is resolved, the litigation relating to California’s net neutrality law will then move forward.” California “has the power -- indeed, the responsibility -- to protect access to the internet,” Wiener said. “This fight is about protecting the health, safety, and vitality of our state.”
ACA and the other ISP groups involved in the case -- CTIA, NCTA and USTelecom -- believe California’s agreement “is a win for consumers that will allow continued innovation and investment while these deliberations continue. Our companies support an open internet, and we urge Congress to resolve this issue by passing a national framework to protect that principle for all Americans.”
The forbearance deal was “a sensible outcome” that “really seems like the best option” given a lack of clarity about whether the U.S. District Court of the Eastern District of California has sufficient jurisdictional authority to rule on the state’s treatment of the FCC rescission order, said Public Knowledge Senior Counsel John Bergmayer, who supported the California law. Both sides agreed it made sense “not to waste a federal court’s time on a side dispute that could easily be rendered moot” by the D.C. Circuit’s ruling. Bergmayer cautioned the deal isn't final until District Judge John Mendez approves it, though “I don’t see why he wouldn’t” given the agreement’s widespread backing.
“I suppose it’s OK” the FCC agreed to the deal with California but “I would have been just as happy to see the case move forward as is and have the preliminary injunction be granted,” said Free State Foundation President Randolph May, an opponent of the state law. “I remain very confident that the federal government is ultimately going to prevail because California’s law really is inconsistent with federal policy on net neutrality.” California likely moved to reach the deal “because it thinks its case for the law is pretty weak and is not confident it can win in the courts,” May said.