US drops suit against Calif. net neutrality rule, but ISPs are still fighting it

The Biden administration has abandoned a Trump-era lawsuit that sought to block California’s net neutrality law. In a court filing today, the US Department of Justice said it “hereby gives notice of its voluntary dismissal of this case.” Shortly after, the court announced that the case is “dismissed in its entirety” and “all pending motions in this action are denied as moot.”

The case began when Trump’s DOJ sued California in September 2018 in US District Court for the Eastern District of California, trying to block a state net neutrality law similar to the US net neutrality law repealed by the Ajit Pai-led FCC. Though Pai’s FCC lost an attempt to impose a blanket, nationwide preemption of any state net neutrality law, the US government’s lawsuit against the California law was moving forward in the final months of the Trump administration.

The Biden DOJ’s voluntary dismissal of the case puts an end to that. “I am pleased that the Department of Justice has withdrawn this lawsuit,” FCC Acting Chairwoman Jessica Rosenworcel said today. “When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws. By taking this step, Washington is listening to the American people, who overwhelmingly support an open Internet, and is charting a course to once again make net neutrality the law of the land.”

ISPs still fighting state law

California still has to defend its net neutrality rules against a separate lawsuit filed by the major broadband-industry lobby groups. The industry groups representing all the biggest ISPs and many smaller ones filed an amended complaint against California in August 2020, claiming the net neutrality law is “unconstitutional state regulation.”

“Those of us who support SB822, the California law, believe that challenges to the law lack a valid basis,” Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, told Ars today. “In light of the fact that the FCC disclaimed any jurisdiction over broadband Internet service, the FCC’s claim of a policy of ‘non-regulation’ leaves the states free to regulate.”

Schwartzman and the Benton Institute are helping California defend the law in court. A hearing on the industry’s motion for preliminary injunction is scheduled for February 23, Schwartzman said.

Back in October 2018, California agreed to suspend enforcement of its law until litigation is over. The state law prohibits Internet service providers from blocking or throttling lawful traffic. It also prohibits requiring fees from websites or online services to deliver or prioritize their traffic to consumers, 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.

“Good start” toward restoring net neutrality

The FCC is likely to reinstate net neutrality rules during the Biden administration but can’t do so yet as the commission is deadlocked 2-2 between Democrats and Republicans. A new Democratic commissioner must be nominated by Biden and approved by the Senate.

“The Biden administration must restore net neutrality, and dropping this case is a good start,” Joshua Stager, senior counsel at New America’s Open Technology Institute, said today.

The Trump administration lawsuit was “a frontal attack on both net neutrality and California’s right to protect consumers,” Stager said. California lawmakers passed the law “to ensure that Californians get the Internet service they paid for without unreasonable interference from their Internet provider. That law is needed now more than ever as millions of Californians rely on Internet service to get through simultaneous public health, economic, and climate crises. The Department of Justice never should have stood in the way of this law.”