May 05, 2022, 21:30 pm
Written by Jon Brodkin
Published: May 5, 2022
The broadband industry has abandoned its lawsuit against California's net neutrality law after a series of court rulings went against Internet service providers.
The four broadband lobby groups that sued California "hereby stipulate to the dismissal of this action without prejudice," they wrote in a filing Wednesday in US District Court for the Eastern District of California. The ISP groups are ACA Connects (formerly the American Cable Association), CTIA-The Wireless Association, NCTA-The Internet & Television Association, and USTelecom.
"After losing three times in federal court, the ISPs have finally realized that they can't overturn California's net neutrality law and that they should just stop trying," Stanford Law Professor Barbara van Schewick wrote, calling the development "a historic win for Californians and the open Internet."
"Thanks to the hard work of California's attorney general and the wide coalition that helped defend the law in court, the ISPs gave up instead of fighting this to the Supreme Court," she also wrote.
Preliminary injunction denied three times
ISPs had been seeking a preliminary injunction to block the law before the case went to trial but were repeatedly unsuccessful. First, US District Judge John Mendez refused to grant the requested preliminary injunction in February 2021, allowing California to enforce its net neutrality rules.
ISPs then appealed to the US Court of Appeals for the Ninth Circuit, but in January 2022, a three-judge panel unanimously upheld the lower court's ruling. Finally, the ISPs asked for an en banc hearing with all the court's judges. Zero judges on the 29-seat appeals court thought the broadband industry's petition for a rehearing was even worth voting on.
"The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. The petition for rehearing en banc is denied," said the order against the ISPs on April 20.
ISPs could have proceeded to a trial in US District Court, as the denial of a preliminary injunction doesn't prevent litigation from continuing. But the denials from appeals court judges combined with Mendez's criticism of the ISPs' legal arguments apparently persuaded the lobby groups not to go forward.
"The ISPs threw in the towel today on their challenge to California's net neutrality law," Andrew Jay Schwartzman, senior counselor for the Benton Institute for Broadband & Society, said in a statement after yesterday's dismissal. "They were forced to accept what most observers had seen: in the wake of the Federal Communications Commission's decision disclaiming interest in treating broadband access service as subject to federal regulation, the states were freed to adopt their own requirements."
After the dismissal, the industry groups released a statement saying that "broadband providers are united in support of an open Internet" and "committed themselves to working with Congress and the Federal Communications Commission to develop a federal approach for resolving the issues," according to Reuters. But despite claiming to support net neutrality principles, broadband lobby groups have consistently opposed net neutrality rules at both the federal and state level.
Judge: Law doesn’t support ISPs’ arguments
In his oral ruling against the preliminary injunction, Mendez said, "I don't find that the plaintiffs have demonstrated a likelihood of success on the merits at this stage of the litigation."
ISPs "asserted that the Communications Act gave the FCC the exclusive authority to regulate interstate communications, leaving the states only able to regulate purely intrastate communications," Mendez said. "But the court finds that the provisions of the Act that the plaintiffs rely on do not support the arguments that have been raised."
California's net neutrality law is similar to the federal rules that were enacted by the FCC during the Obama administration and then repealed during the Trump era. California prohibits fixed and mobile ISPs from blocking or throttling lawful traffic and says ISPs may not require fees from websites or online services to deliver or prioritize their traffic to consumers. California's law also bans paid data cap exemptions (so-called "zero-rating") and says that ISPs may not attempt to evade net neutrality protections by slowing down traffic at network interconnection points.
Ajit Pai’s preemption tactic failed
Former FCC Chairman Ajit Pai tried to preempt all 50 states from passing their own net neutrality laws when he led the repeal of federal rules. But the US Court of Appeals for the District of Columbia Circuit said in 2019 that any preemption would have to happen on a case-by-case basis because the FCC "lacked the legal authority to categorically abolish all 50 States' statutorily conferred authority to regulate intrastate communications."
DC Circuit judges upheld Pai's repeal of federal net neutrality rules, even though his claim that broadband isn't a "telecommunications service" seemed to be "unhinged from the realities of modern broadband service," one of the judges wrote in a concurring opinion. Supreme Court precedent required judges to defer to the FCC on whether broadband should be classified as an information service or a telecommunications service. Pai's reclassification of broadband from telecommunications to an information service essentially stripped the FCC of authority to impose net neutrality rules.
But Pai's attempt to prevent states from imposing their own laws failed, because "in any area where the Commission lacks the authority to regulate, it equally lacks the power to preempt state law," the DC Circuit appeals court ruling said in the Mozilla v. FCC case.
That DC Circuit ruling was cited by the Ninth Circuit appeals court in January when it backed Mendez's denial of the preliminary injunction. The Ninth Circuit order said:
Revival of US rules stalled by FCC deadlock
Consumer advocates are still frustrated by the lack of federal rules and by the fact that the US Senate hasn't confirmed Biden nominee Gigi Sohn to the FCC. The commission has a 2-2 deadlock between Democrats and Republicans, preventing FCC Chairwoman Jessica Rosenworcel from reinstating net neutrality rules.
"After a string of defeats, including failing to convince a single judge on the Ninth Circuit to vote to rehear their case, the group of Internet service providers suing to overturn California's net neutrality law has realized its efforts are futile," said John Bergmayer, legal director at consumer-advocacy group Public Knowledge. "This is great news, but the effort to enact net neutrality rules nationwide must continue. The Senate must act to ensure we have a full Federal Communications Commission that can restore these important consumer protections for all Americans."
But ISPs still have to follow net neutrality principles in California and some other states. Elsewhere in the Ninth Circuit, the state of Washington is enforcing a net neutrality law, and Oregon enacted a law that forbids state agencies from purchasing fixed or mobile Internet service from ISPs that violate the core net neutrality principles laid out in the repealed FCC rules.
As Schwartzman said, "Several other states [besides California] have adopted net neutrality requirements by statute or executive order. The reasoning of the Ninth Circuit court allows those provisions to remain in effect as well. The end of this litigation is a boon for free speech, competition, and innovation on the Internet."
https://arstechnica.com/tech-policy/2022...ality-law/
Published: May 5, 2022
The broadband industry has abandoned its lawsuit against California's net neutrality law after a series of court rulings went against Internet service providers.
The four broadband lobby groups that sued California "hereby stipulate to the dismissal of this action without prejudice," they wrote in a filing Wednesday in US District Court for the Eastern District of California. The ISP groups are ACA Connects (formerly the American Cable Association), CTIA-The Wireless Association, NCTA-The Internet & Television Association, and USTelecom.
"After losing three times in federal court, the ISPs have finally realized that they can't overturn California's net neutrality law and that they should just stop trying," Stanford Law Professor Barbara van Schewick wrote, calling the development "a historic win for Californians and the open Internet."
"Thanks to the hard work of California's attorney general and the wide coalition that helped defend the law in court, the ISPs gave up instead of fighting this to the Supreme Court," she also wrote.
Preliminary injunction denied three times
ISPs had been seeking a preliminary injunction to block the law before the case went to trial but were repeatedly unsuccessful. First, US District Judge John Mendez refused to grant the requested preliminary injunction in February 2021, allowing California to enforce its net neutrality rules.
ISPs then appealed to the US Court of Appeals for the Ninth Circuit, but in January 2022, a three-judge panel unanimously upheld the lower court's ruling. Finally, the ISPs asked for an en banc hearing with all the court's judges. Zero judges on the 29-seat appeals court thought the broadband industry's petition for a rehearing was even worth voting on.
"The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. The petition for rehearing en banc is denied," said the order against the ISPs on April 20.
ISPs could have proceeded to a trial in US District Court, as the denial of a preliminary injunction doesn't prevent litigation from continuing. But the denials from appeals court judges combined with Mendez's criticism of the ISPs' legal arguments apparently persuaded the lobby groups not to go forward.
"The ISPs threw in the towel today on their challenge to California's net neutrality law," Andrew Jay Schwartzman, senior counselor for the Benton Institute for Broadband & Society, said in a statement after yesterday's dismissal. "They were forced to accept what most observers had seen: in the wake of the Federal Communications Commission's decision disclaiming interest in treating broadband access service as subject to federal regulation, the states were freed to adopt their own requirements."
After the dismissal, the industry groups released a statement saying that "broadband providers are united in support of an open Internet" and "committed themselves to working with Congress and the Federal Communications Commission to develop a federal approach for resolving the issues," according to Reuters. But despite claiming to support net neutrality principles, broadband lobby groups have consistently opposed net neutrality rules at both the federal and state level.
Judge: Law doesn’t support ISPs’ arguments
In his oral ruling against the preliminary injunction, Mendez said, "I don't find that the plaintiffs have demonstrated a likelihood of success on the merits at this stage of the litigation."
ISPs "asserted that the Communications Act gave the FCC the exclusive authority to regulate interstate communications, leaving the states only able to regulate purely intrastate communications," Mendez said. "But the court finds that the provisions of the Act that the plaintiffs rely on do not support the arguments that have been raised."
California's net neutrality law is similar to the federal rules that were enacted by the FCC during the Obama administration and then repealed during the Trump era. California prohibits fixed and mobile ISPs from blocking or throttling lawful traffic and says ISPs may not require fees from websites or online services to deliver or prioritize their traffic to consumers. California's law also bans paid data cap exemptions (so-called "zero-rating") and says that ISPs may not attempt to evade net neutrality protections by slowing down traffic at network interconnection points.
Ajit Pai’s preemption tactic failed
Former FCC Chairman Ajit Pai tried to preempt all 50 states from passing their own net neutrality laws when he led the repeal of federal rules. But the US Court of Appeals for the District of Columbia Circuit said in 2019 that any preemption would have to happen on a case-by-case basis because the FCC "lacked the legal authority to categorically abolish all 50 States' statutorily conferred authority to regulate intrastate communications."
DC Circuit judges upheld Pai's repeal of federal net neutrality rules, even though his claim that broadband isn't a "telecommunications service" seemed to be "unhinged from the realities of modern broadband service," one of the judges wrote in a concurring opinion. Supreme Court precedent required judges to defer to the FCC on whether broadband should be classified as an information service or a telecommunications service. Pai's reclassification of broadband from telecommunications to an information service essentially stripped the FCC of authority to impose net neutrality rules.
But Pai's attempt to prevent states from imposing their own laws failed, because "in any area where the Commission lacks the authority to regulate, it equally lacks the power to preempt state law," the DC Circuit appeals court ruling said in the Mozilla v. FCC case.
That DC Circuit ruling was cited by the Ninth Circuit appeals court in January when it backed Mendez's denial of the preliminary injunction. The Ninth Circuit order said:
Quote:We conclude the district court correctly denied the preliminary injunction. This is because only the invocation of federal regulatory authority can preempt state regulatory authority. As the DC Circuit held in Mozilla, by classifying broadband Internet services as information services, the FCC no longer has the authority to regulate in the same manner that it had when these services were classified as telecommunications services. The agency, therefore, cannot preempt state action, like SB-822 [the California law], that protects net neutrality. Without the authority to preempt, it does not much matter whether SB-822 conflicts with the federal policy objectives underlying the reclassification decision. And SB-822 does not conflict with the Communications Act itself, which only limits the FCC's regulatory authority. As to the service providers' field preemption argument, Supreme Court authority, the case law of this circuit, and various provisions of the Communications Act itself all foreclose that argument.
Revival of US rules stalled by FCC deadlock
Consumer advocates are still frustrated by the lack of federal rules and by the fact that the US Senate hasn't confirmed Biden nominee Gigi Sohn to the FCC. The commission has a 2-2 deadlock between Democrats and Republicans, preventing FCC Chairwoman Jessica Rosenworcel from reinstating net neutrality rules.
"After a string of defeats, including failing to convince a single judge on the Ninth Circuit to vote to rehear their case, the group of Internet service providers suing to overturn California's net neutrality law has realized its efforts are futile," said John Bergmayer, legal director at consumer-advocacy group Public Knowledge. "This is great news, but the effort to enact net neutrality rules nationwide must continue. The Senate must act to ensure we have a full Federal Communications Commission that can restore these important consumer protections for all Americans."
But ISPs still have to follow net neutrality principles in California and some other states. Elsewhere in the Ninth Circuit, the state of Washington is enforcing a net neutrality law, and Oregon enacted a law that forbids state agencies from purchasing fixed or mobile Internet service from ISPs that violate the core net neutrality principles laid out in the repealed FCC rules.
As Schwartzman said, "Several other states [besides California] have adopted net neutrality requirements by statute or executive order. The reasoning of the Ninth Circuit court allows those provisions to remain in effect as well. The end of this litigation is a boon for free speech, competition, and innovation on the Internet."
https://arstechnica.com/tech-policy/2022...ality-law/