California Attorney General Xavier Becerra on Friday entered into an agreement with the telecom industry groups currently suing California over its recently passed net neutrality law, potentially delaying its implementation until next year.
The agreement between Becerra's office and the telecom groups, which must be approved by a judge, prevents California's net neutrality from going into effect until after another lawsuit filed against the Federal Communication Commission (FCC) over its rollback of the Obama-era net neutrality rules is resolved.
The agreement also stays the lawsuit brought against California over its attempt to establish state-level net neutrality protections for California's 40 million residents.
The California lawsuit is inextricably tied to the outcome of the DC case, currently being heard in the US Court of Appeals for the DC Circuit. If in that case, a judge finds the FCC overstepped its authority when it revoked the 2015 Open Internet Order, then California's net neutrality law will, essentially, no longer matter. And the lawsuit brought against California by the nation's largest telecom providers will prove to be pointless.
It is also possible that the federal case will result in only certain parts of the FCC rules being overturned, such as the provision intended to preempt states from establishing their own net neutrality laws. Such a ruling would have dramatic implications for the California lawsuit — one of the two principal arguments against California is that the FCC rules preempt state laws.
The lawsuit against the FCC is simply months ahead of the case being brought against California. Proceeding with the California case would, in other words, be a huge waste of taxpayer money.
The Washington Post reported Friday that FCC Chairman Ajit Pai was pleased with the deal, saying it was a "substantial concession [reflecting] the strength of the case made by the United States earlier this month."
In a statement, Bacerra reaffirmed that his office remains committed to enacted net neutrality in California. "Every step we take, every action we launch is intended to put us in the best position to preserve net neutrality for the 40 million people of our state," he said. "We are fighting the Trump Administration's attempt to repeal net neutrality in the DC Circuit Court and we will vigorously defend California's own net neutrality law."
A spokesperson for the attorney general told Gizmodo: "Today's stay represents a pause in our litigation to guarantee we can argue the defence of California's net neutrality on behalf of our 40 million people."
It's unknown precisely when the DC Circuit case will be resolved, but a ruling could take several months, potentially dragging the outcome out into mid-2019. The Trump administration may also appeal any unfavourable outcome to the US Supreme Court, which is not obligated to hear the case. What's more, if Democrats regain control of the FCC in 2021, the legal battles over net neutrality could carry on for several more years.
For now, California residents who were hoping to regain the net neutrality protections they lost in the 2016 election will just have to wait.
In a statement, California state Senator Scott Wiener, the principal author of California's net neutrality law, SB 822, said that while he desires "very much" to see the law go into effect immediately, he understands and supports Becerra's decision. "After the DC Circuit appeal is resolved, the litigation relating to California's net neutrality law will then move forward," he said.
"Particularly in light of the Trump Administration's decision to end federal net neutrality protections, California has the power — indeed, the responsibility — to protect access to the internet by our residents, businesses, first responders, healthcare providers, and others," Wiener continued. "This fight is about protecting the health, safety, and vitality of our state. Net neutrality ensures open access to the internet and guarantees that each of us can decide for ourselves where to go on the internet, as opposed to internet service providers making that decision for us."
"I look forward to successful litigation on this issue," he added, "and to the restoration of strong net neutrality protections in our state."