The California Internet Consumer Protection and Net Neutrality Act of 2018 has had a lot of close calls. After passing the Senate and almost having been gutted in an Assembly Committee, the bill was resurrected and passed on the last day of the legislative session. A month later, it was signed by outgoing Governor Brown on September 30th – the very last day possible to sign the legislation.
The bill is in response to the Federal Communications Commission’s recent “Restoring Internet Freedom” Order (“RIF Order“) that not only repealed the Obama administration’s February 2015 “Open Internet Order” that implemented new Net Neutrality rules but for the first time gave the green light to paid prioritization and throttling users so long as it is disclosed. California is part of a lawsuit filed with 21 other Democratic Attorney Generals challenging the RIF Order.
Today, however, the Trump administration struck back filing a complaint and motion for preliminary injunction seeking to block the bill from taking force. The Trump administration contends the California bill is expressly preempted by provisions in the RIF Order preempting
any state or local measures that would effectively impose rules or requirements that [the FCC] ha[d] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that [it] address[ed] in this order.
Attorney General Jeff Sessions stated:
Under the Constitution, states do not regulate interstate commerce—the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy.
Federal Communications Chairman Ajit Pai added
I’m pleased the Department of Justice has filed this suit. The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area. And the U.S. Court of Appeals for the Eighth Circuit recently reaffirmed that state regulation of information services is preempted by federal law.
There is one hiccup to the Trump administration’s strategy –by reinterpreting to Communications Act to remove the FCC’s authority to implement net neutrality rules it may also have eliminated its ability to preempt state laws in the area. As Stanford Law School Professor Barbara van Schewick explains;an agency that does not have the power to regulate does not have the power to preempt.
The Justice Department’s motion is below.