Gov. Brown Nears Deadline to Sign California Net Neutrality Bill

California net neutrality bill watchers continued to wait for Gov. Jerry Brown (D) to sign or veto SB-822 ahead of a midnight Sunday deadline. With anticipation running high for a lawsuit if California enacts the measure, FCC Republicans continue to signal they view it as pre-empted by their net neutrality deregulation.

Brown hadn’t reached a decision and his office didn’t comment. Silence on pending bills is typical for Brown, though some supporters predicted he would sign (see 1809180024). In California, a bill automatically becomes law if the governor doesn't sign or veto.

FCC Chairman Ajit Pai has said state net neutrality measures like California's are illegal, and the agency is "going to fight" to keep "lawyers, bureaucrats and politicians" from running the internet (see 1809140046). An FCC spokesperson didn't comment Friday. Commissioner Mike O’Rielly "is going to want to use every tool in the tool box to push back against a law that we clearly pre-empted in December," an aide told us. O’Rielly says the bill disregards the Commerce Clause of the U.S. Constitution (see 1808310042).

California could be the fourth state to enact a net neutrality law, after Washington enacted comprehensive rules, and Oregon and Vermont limited procurement. Montana, New York, New Jersey, Hawaii, Rhode Island and Vermont have executive orders that similarly limit state contracts. Supporters of the 2015 rules frequently refer to California’s measure as the “gold standard” due to its similarity to the previous federal regulations. It got support from ex-FCC Chairman Tom Wheeler, U.S. House Democratic Leader Nancy Pelosi (California) and California Attorney General Xavier Becerra (D), who's part of a group of state AGs suing the FCC over its December net neutrality revocation order.

The bill “could go into effect as early as Jan. 1, 2019 unless there is a lawsuit before then that delays implementation,” emailed a spokesman for the bill’s author, state Sen. Scott Wiener (D). AT&T, Verizon, Comcast and other ISPs "made very clear that they're going to sue us," Wiener said at a Sept. 18 news conference. "If the FCC decides to get involved, that's their prerogative." But the FCC can't pre-empt states because it's an unelected body and said in the December order that it has "no role whatsoever in protecting net neutrality," he said.

Net neutrality advocates expected Brown to sign the bill. "I can't imagine why he wouldn’t," said Free Press Policy Director Matt Wood Friday. He and others also expect ISP interests to seek court action to strike down the law if enacted. “I assume it’ll be their trade associations who will sue,” said Angie Kronenberg, Incompas general counsel. USTelecom pointed to CEO Jonathan Spalter's earlier veto call. The American Cable Association, CTIA and NCTA didn't comment. Wood "could see" the FCC participating in litigation.

Supporters and opponents rattled swords as Brown’s decision approached. “Signing this bill will simply crack open further the Pandora’s Box of state-by-state Internet regulation,” said TechFreedom President Berin Szoka, who Friday sent a letter to Brown urging veto. The Electronic Frontier Foundation urged the governor to sign. The bill “goes beyond the basic protections laid out in Washington and Oregon to prevent blocking and interference to ensure that Internet service providers cannot circumvent net neutrality protections at any point,” and addresses zero rating, EFF Legislative Activist Hayley Tsukayama blogged Thursday.