Kevin de Leon, state Senate president pro tem and Democratic candidate for the U.S. Senate, acknowledges staff as he speaks during an election party Tuesday, June 5, 2018, in Los Angeles. Photo: AP
A key vote is taking place in California next week. Amid intense lobbying pressure, experts say it could eventually impact efforts by other states to reestablish net neutrality in the wake of the FCC’s decision to repeal the 2015 Open Internet Order.
On Wednesday, a group of legislators in the California State Assembly will decide whether to advance a comprehensive net neutrality bill or an in-name-only net neutrality bill, which leading digital rights groups say is rife with loopholes that may ultimately benefit internet service providers (ISPs) such as AT&T, while leaving California residents and businesses vulnerable to known net neutrality violations.
While the in-name-only bill itself may only apply to Californians, experts warn the effect of its passage may eventually have nationwide ramifications. The inability of California’s legislature, overwhelmingl controlled by Democrats, to enshrine the strictest net neutrality protections possible would raise serious concerns about the rest of country’s ability to do so.
If California’s progressive majority can’t protect net neutrality, then who can?
The bill under consideration, known as SB 460, was introduced by State Sen. Kevin de León, Democrat of Los Angeles. It will be voted upon by the State Assembly’s Committee on Communications and Conveyance next week. Leading net neutrality advocates are urging lawmakers to dismiss the bill in favor of one with stronger protections, SB 822, which passed the California Senate late last month. (SB 460, which predates SB 822, passed the Senate in late January.)
On Friday, a coalition of 48 leading progressive groups sent a letter to the committee’s chair, Assemblymember Miguel Santiago, urging him to throw his support behind SB 822. The letter was signed by the following groups, among others: Color of Change, Free Press, Fight for the Future, Demand Progress, Public Knowledge, and the Women’s Media Center.
The Electronic Frontier Foundation, one of the nation’s leading digital rights groups, said it remains “neutral” on SB 460, but strongly supports SB 822. The National Hispanic Media Coalition also did not sign the letter, but tells Gizmodo that it opposes 460 in favor of 822.
“While Senator de León’s introduction of SB 460 in January sent an early and forceful message that California legislators needed to stand up for the rights of all Californians to use the internet as they choose without interference from the companies they pay to get online, SB 822 is the most comprehensive state-level bill in the country,” the letter reads.
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The groups consider SB 460 deficient in a number of key areas: First, it does not prohibit ISPs from charging so-called access fees. This raises the possibility that an ISP could charge sites and services fees to load for the ISP’s subscribers, a practice that was specifically banned under the Open Internet Order, and would be prohibited under SB 822.
Senator de León did not immediately respond to a request for comment.
SB 460 also fails to ban ISPs from violating net neutrality at the interconnection point by demanding exorbitant fees from big online companies and transit providers, such as Level 3 or Cogent. While consumer ISPs deliver internet along the “last mile” (i.e., to subscribers’ homes), transit providers keep traffic flowing along the internet’s “highways.” Interconnection points are where these “internet-backbone” providers connect to ISPs such as AT&T, Verizon, and Comcast, which then deliver internet content and services directly to users.
By reclassifying internet access service under Title II of the Telecommunications Act, the 2015 Open Internet Order gave the FCC the power to keep ISPs from intentionally congesting interconnection points—rendering services such as voice-over-IP unusable by their subscribers. ISPs did that from 2013 to 2015 in an effort to charge companies such as Cogent and Netflix additional fees to reach users. The practice of charging egregious interconnection fees would be banned under SB 822, but notably, SB 460 fails to address it.
Last year, the New York Attorney General’s office filed a lawsuit against Time Warner Cable claiming it defrauded consumers by intentionally slowing down internet services specifically to negotiate higher fees from Cogent, among others. The AG’s office claimed that doing so led to poor internet service for Netflix users, as well as players of Riot’s League of Legends game, despite the fact that TWC’s customers had paid for a good internet connection. (The lawsuit is ongoing.)
“In the fight for real net neutrality for communities in California it’s important not to be fooled by weaksauce bills like SB 460, a half-baked bill that has loopholes big enough for ISPs to drive a truck through,” said Brandi Collins, senior campaign director for Color of Change.
Added Collins:
This bill would allow Internet Service Providers to charge fees for websites simply to load—something that could stop small, diverse start ups and independent business owners from even getting off the ground. It also allows ISPs to violate protections at the point of interconnection potentially leading to slow downs—another loophole that pre 2015 was exploited by ISPs in order to enact more tolls for service. It would also exacerbate the digital divide and we still have too many people in low-income neighborhoods- both in urban communities and across the state’s inland regions and rural communities- struggling to get connected, a disproportionate number of those are Black and Brown folks.
If SB 460 is approved next week, it doesn’t necessarily mean that SB 822, the stronger bill, won’t be. Instead, the bills would likely be stitched together later this summer. Should that happen, it is likely that key net neutrality protections would be weeded out in the process, leaving behind a watered down bill that has no hope of actually preserving net neutrality.
Whether SB 460 passes largely comes down to a small group of Democrats: Assemblymembers Miguel Santiago, Rob Bonta (who coauthored the bill), Sabrina Cervantes, Eduardo Garcia, Chris Holden, Sydney Kamlager-Dove, Evan Low, Sharon Quirk-Silva, and Freddie Rodriguez. Net neutrality groups contend the legislators are under immense lobbying pressure from companies like AT&T, which wield enormous political influence in the state.
In a statement emailed to Gizmodo, Assemblywoman Sharon Quirk-Silva said, “I am studying SB 822 in favor of SB 460; it’s benefits, and deficiencies. I stand for net neutrality and want guarantees that Californians are free to access all content and applications equally, regardless of the source, without Internet Service Providers discriminating against specific websites. This is a matter of free speech.”
Most of the lawmakers did not immediately responded to Gizmodo’s emails Friday morning. A spokesperson for Holden’s office declined to say whether he intended to support SB 822. A spokesperson for Freddie Rodriguez said he was focused an impending deal to be struck over how to combine the pieces of legislation.
The progressive coalition’s letter opposing SB 460 is below in full:
Updated at 3:40 p.m. and 4:34 p.m. with a comment from Assemblywoman Sharon Quirk-Silva and additional information on SB 822.
Correction: This post originally stated that the letter was signed by the National Hispanic Media Coalition. While the group did not sign the letter, it told Gizmodo that it opposes SB 460 in favor of SB 822. We regret the error.