Governor Jerry Brown has signed into law S.B. 822, also known as the California Internet Consumer Protection and Net Neutrality Act of 2018. The law is intended to go into effect on January 1, 2019 and, according to CNN, will establish the “strictest net neutrality protections in the country.”
However, the U.S. government has responded to the California action by seeking a preliminary injunction to block the law from going into effect. A DOJ press release announcing the suit is attached here, in which the DOJ asserts that “Once again the California legislature has enacted an extreme and illegal state law attempt to frustrate federal policy.”
However, according to the Electronic Frontier Foundation, the core argument by the DOJ and FCC articulated in the court filings is not that states cannot pass net neutrality laws but that a pending lawsuit in the D.C. Circuit filed by the California Attorney General challenging the FCC’s repeal of net neutrality should be decided before the legality of the passage of the California Internet Consumer Protection and Net Neutrality Act of 2018 can be decided.
Wired reports that the dispute between California and the federal government “raises novel questions about the relationship between the federal government and the states.” At the heart of the dispute is whether California has the legal right to pass a law on net neutrality, and whether the FCC has the legal right to prevent states from adopting net neutrality laws. While in general pre-emption only occurs when there are incompatible state and federal rules, Wired reports that “[i]t’s not unheard of for the federal government to preempt state or local regulations when those regulations conflict with federal policy, even when the federal policy is not to regulate.” In contrast to the current facts, however, Wired reports that the past example of this type of pre-emption involved a decision by Congress as opposed to a federal agency.
Clearly, California and the federal government are now headed for a legal show-down in federal court. The Silicon Valley Software Law Blog will keep you posted as the legal battle further develops.