When it comes to the internet, there are no state lines. That means unless a uniform federal policy is enacted to govern how services are handed out, then by default the state with the strictest regulations ultimately calls the shots. Since the internet reaches every state, service providers go by the strictest guidelines when setting their policies in order to conform to regulations. And unfortunately for everyone, California is currently taking the lead on net neutrality policy.
California has enacted a net neutrality law banning “sponsored data” services. These services allowed companies to sponsor their wireless customers’ data usage in certain circumstances. For example, AT&T could comp customers’ data usage if they also subscribed to video streaming service HBO (owned by AT&T). But this will no longer be possible. The law now prohibits providers from offering competitive data features to consumers free of charge.
This law pushes backs against the Federal Communications Commission’s (FCC) 2018 decision to roll back federal net neutrality policies from the Obama era. As a result of the repeal, the FCC eliminated rules preventing internet providers from blocking or slowing down access to online content or prioritizing their own content. Net Neutrality advocates fear the lack of regulation allows internet providers an excess of control over online content delivery. That’s a reasonable fear. It’s entirely possible that this control could lead to service providers slowing down content streamed via their competitors’ services.
In response to the repeal, California passed the net neutrality law, which the Trump administration immediately tried to block. The whole thing has been in legal limbo since then. That is until earlier this year when the Biden administration dropped the lawsuit. The telecommunications industry quickly joined and tried to maintain the suit. But U.S. District Court Judge John A. Mendez denied the request, allowing California to begin enforcing its law.
Judge Mendez ultimately disagreed with the argument that California’s net neutrality rules were preempted by federal law. Much of his reasoning reflected the specific way the FCC renounced its authority to regulate broadband creating a lack of prevention language in the 1934 and 1996 Telecommunication Acts. As a result of the FCC choosing not to regulate broadband, there is currently a lack of federal law regulating net neutrality. This creates a vacuum for incoming regulatory legislation to begin regulation.
Without federal legislation, states with the strictest net neutrality laws take control. A lack of standing procedural history places sovereignty in the hands of state judges. Service providers can’t treat the California consumer differently than someone in New York, because internet streaming can’t be confined by state lines. In order to comply with one state’s regulations, service providers must treat all customers the same regardless of residence. This gives an unprecedented authority of one state to be able to control the other.
This power vacuum should be a concerning illustration of how the internet and new technology are exceedingly more difficult to regulate given the lack of legal precedence surrounding their existence. The reach of these innovations rarely sits neatly between state lines. This means the first state to regulate starts the legal precedence. Lack of federal regulation gives states insurmountable powers, especially over each other. When one state chooses a more stringent net neutrality regulation, service providers are forced to comply in a uniform matter, affecting all other states.
A state-by-state approach to “net neutrality” is unfeasible. A patchwork of state regulations creates roadblocks for the consumers and service providers alike. This would halt the borderless speed of the internet. If the FCC wants a more laisse faire form of regulation, it’s in their best interest to codify it immediately before legal precedent inhibits their options.
In the tango for control, the lack of federal legal precedence compounded with the internet’s infinite, stateless structure poses a unique legal problem. And it’s a problem that’s likely not going to end with net neutrality. As technological innovation continues to grow, so too will state regulations. We need uniform federal mandates on this issue, and we need them fast — otherwise, California will be left driving the bus by default.
