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California Senator Beefs Up State’s Net-Neutrality Bid

With the Trump administration officially scrapping net neutrality, a California Democrat on Wednesday proposed sweeping restrictions on internet providers in a bill that would enhance some of the recently nixed Obama-era protections.

SACRAMENTO, Calif. (CN) – With the Trump administration officially scrapping net neutrality, a California Democrat on Wednesday proposed sweeping restrictions on internet providers in a bill that would enhance some of the recently nixed Obama-era protections.

Coining it the “strongest net neutrality” proposal in the country, state Sen. Scott Weiner introduced amendments to his proposal that would ban companies like AT&T and Verizon from slowing access and exempting certain content from customers’ data plans. The San Francisco Democrat says Senate Bill 822 would put “California at the national forefront” in the effort to protect an open internet.

“Internet service providers play a key role in allowing people to access the internet, but [they] must not be allowed to decide who can access what websites or applications,” Wiener said in a statement. “Without net neutrality, service providers have the power to manipulate which business, media, nonprofit, or political websites are accessible and by whom.”

Wiener introduced his bill in January but announced stricter amendments Wednesday after bouncing ideas off supporters such as the Electronic Frontier Foundation, the American Civil Liberties Union and other elected officials.

The changes ramp up consumer protections in an effort to stop a common practice known as “zero-rating,” in which providers exempt data used on streaming services like Netflix from customers’ bills. Major providers pair up with companies like ESPN and or Netflix, giving them advantages over smaller or local broadband providers.

Critics say the practice exploits customers that can’t afford plans with zero-rating and that it ultimately restricts internet access.

Under SB 822, zero-rating must be “application-agnostic” and offered regardless of the customers’ data plan.

“Application-agnostic means not differentiating on the basis of source, destination, internet content, application, service, or device, or class of internet content, application, service or device,” the amended bill states.

In 2016, the Obama administration warned Verizon and AT&T that zero-rating plans violated net-neutrality laws.

California and a host of states are pursuing new legislation in response to the Federal Communications Commission’s controversial February decision to repeal net-neutrality rules. While dozens of states are challenging the repeal in federal court, the rules are set to go into effect April 23.

Wiener’s bill is the first to address zero-rating and also requires state agencies to only contract with providers that follow the state’s net-neutrality rules. Additionally, businesses applying for new state cable franchises must also agree to abide by the net-neutrality guidelines.

State lawmakers have already advanced a similar net-neutrality bill by state Sen. Kevin De Leon, D-Los Angeles. The proposal cleared the Senate in January but has not been taken up in the Assembly.

Critics of De Leon’s bill claim it would be on shaky ground if passed, vulnerable to a challenge by the federal government.

“To survive judicial scrutiny, any such law should focus on intrastate conduct,” said EFF counsel Ernesto Falcon in a blog post. "It's a waste to pass a bill that is vulnerable to legal challenge by service providers when strong alternatives are available.”

The Electronic Frontier Foundation calls De Leon’s measure “well-intentioned” but flawed, and is instead backing Wiener’s bill. Wiener’s office said he will continue to work with De Leon on the bills moving forward.

Stanford law professor Barbara van Schewick says SB 822 is on “firm legal ground.” She says the FCC doesn’t have the authority to prevent states from enacting their own narrowed net-neutrality laws.

“While the FCC's 2017 order explicitly bans states from adopting their own net-neutrality laws, that pre-emption is invalid,” van Schewick said in a statement. “According to case law, an agency that does not have the power to regulate does not have the power to pre-empt. That means the FCC can only prevent the states from adopting net-neutrality protections if the FCC has authority to adopt net-neutrality protections itself.”

Broadband for America, which represents the country’s major service providers, did not immediately respond to an email regarding SB 822.

Wiener says his bill will first be heard in early April by a state Senate policy committee.

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