Courthouse News Service
By Derek Fleming

The battle to preserve internet freedom raged in Sacramento Wednesday, as state legislators debated a bill that would restore and even expand Obama-era rules the Federal Communications Commission (FCC) scrapped after President Trump’s election in 2017.

Senate Bill 822’s author, state Senator Scott Weiner, tweeted Wednesday that the bill passed through the Assembly Committee on Communications and Conveyance “despite his objections.”

The consumer protection-driven legislation addresses net neutrality, the concept that all Internet Service Providers (ISPs) will conform to rules designed to create a fair playing field by restricting practices such as providers blocking access to certain sites or offering tiered services that allow consumers to pay for better access.

On Monday, state Senate President Pro Tempore Kevin de Leon, D-Los Angeles, and state Senator Scott Weiner, D-San Francisco, combined their two bills addressing net neutrality ahead of an important committee hearing Wednesday. Many saw this as a step toward creating a better likelihood of passing strong, “gold standard” reforms.

Then, on Tuesday evening, Assembly Committee on Communications and Conveyance Chairman Miguel Santiago, D-Coachella, exercised his right to amend the bill without the author’s input. Stripping the strongest protections, the resulting bill closely resembles the original FCC regulations of 2015.

Before hearing any testimony Wednesday morning, members of the committee voted 8-0 to adopt Santiago’s amendments, creating a bill that was not what Weiner desired and substantially different than the one passed by the Senate.

Weiner threatened to pull the bill, but allowed it to go before a vote in response to the urging of committee members. Had Weiner pulled the bill, no net neutrality measure would have advanced, ending efforts to restore net neutrality in 2018.

“The amendments just adopted eviscerate the bill, and it is no longer a true net neutrality bill. It’s astounding,” Weiner told the committee. “I want to state for the record that what just happened, I think is a violation of Assembly rules. But even if it isn’t, it is fundamentally unfair.”

Santiago told Weiner that this bill was his one and only shot at regulating ISPs.

“To be clear, we have fought and pushed back on industry to get a net neutrality bill,” Santiago said. “But, we both understand how the legislative process works. The committee recommends amendments, not the members coming to the committee.

“We are up against certain deadlines. In order for you to continue a net neutrality conversation that leads California against what the Trump administration has done is to continue this conversation, rather than to become a martyr with no bill,” Santiago cautioned. “It is for that reason only that I would ask to move the bill, and we can continue to have that conversation.”

Weiner relented, and voting opened on the measure as amended. At the time of this writing, not enough members had cast votes to determine whether the bill would pass to the next committee.

The original text of the bill sought to regulate areas that the FCC determined in 2015 were either outside its responsibility or had failed to show actual harm. Among these, Senate Bill 822 specifically addressed zero-rating, connection points and throttling content.

Proponents of net neutrality see zero-rating, which allows free internet if certain conditions are met – such as accepting advertising or restricted access – as a manipulative tactic to entice low income and communities of color to pay for high-cost, low-data plans with the incentive that certain apps, such as content streaming and exclusive content, can be accessed without counting against the consumer’s data cap.

Paul Goodman, Interim Telecommunications Director with the Greenlining Institute, told members he believes the use of zero-rating is predatory toward communities of color, which he stated do not have the income to pay for high-speed, high-cap service.

The Greenlining Institute is a nonprofit working toward racial and economic justice.

“Over the last seven years, I have asked ISPs for data about how their business decisions and business models impact communities of color,” Goodman told the committee. “I have received three answers- ‘We don’t have that data, we don’t have any way to collect that data, if we did collect that data, it would leave us open to lawsuits for discrimination.’

“Communities of color should be able to tell their own stories without ISP gatekeepers deciding whether those voices are profitable,” Goodman said.

“ISPs have aligned themselves with an administration that is hostile to our friends and communities of color,” he added. “A vote against this bill, or a vote for this watered-down version is not just a vote to enrich ISPs, it is a vote to support an administration that tears children of color away from their families and incarcerates them in concentration camps.”

Opponents to the measure worry that increasing regulation hinders ISPs’ ability to expand and improve services.

They argue that SB 822 as originally written would delay or prevent the rapid construction of the infrastructure necessary for 5G technology to be deployed, likely discouraging ISPs from expanding services into rural California. Further, opponents cite numerous FCC and Federal Trade Commission (FTC) laws, in addition to authority granted to state attorneys general, that already prevent ISPs from unfair competition practices.

Santiago amended the bill to bring it in line with the spirit and language of the 2015 FCC rules, even though that meant removing some of the more contentious restrictions.

“An exhaustive 10-year long stakeholder process resulted in 2015 regulations that were against industry’s wishes,” Santiago said in a statement. “Trump’s rollback of these regulations are a concern to me, as they should be for every American. California should once again stand as a back-stop of ‘the resistance’ by beating back both Trump’s Administration and the billion-dollar corporations he’s trying to protect.

“Because of that, I stand firm in recommending the 2015 Obama FCC rules on net neutrality as they were included in Senate Bill 822 this morning,” Santiago said.

Regardless of whether the bill becomes law, Weiner is unhappy with the unilateral changes the committee imposed on it.

“I’m proud to stand with a broad coalition of labor, media, anti-poverty, social justice, consumer, and business organizations, as well as elected leaders, including Senator Kevin de Leon, in fighting for net neutrality,” Weiner said in a statement after the hearing. “California should lead by example and enact the strongest net neutrality protections in the country. Passing a weak, neutered bill is exactly the wrong direction for our state.”

The bill’s next stop is the Privacy and Consumer Protections Committee.