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California agrees to not enforce net neutrality law... for now

It promised the Justice Department that it won't enforce the state law until a lawsuit challenging the repeal of the federal regulations is resolved.

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California will not enforce its net neutrality law until the lawsuit challenging the FCC's 2017 repeal of the Obama-era rules is finished.

Sarah Tew/CNET

California has agreed to not enforce its net neutrality law until a lawsuit challenging the Federal Communications Commission's repeal of the federal regulations is resolved.

The agreement is part of a temporary deal struck with the US Justice Department, which is suing the state over its new law. The deal still has to be approved by a judge. 

California's law prohibits internet service providers from slowing down or blocking access to websites or charging companies like Netflix extra to deliver their services faster. It's based on Obama-era net neutrality protections that the Republican-led FCC rolled back earlier this year.

But California's law goes further, also outlawing some zero-rating offers, such as an AT&T offer that exempts its own streaming services from its wireless customers' data caps. The law also applies the net neutrality rules to so-called "interconnection" deals between network operators, something the FCC's 2015 rules didn't explicitly do.

The law, signed by Gov. Jerry Brown in September, was supposed to take effect in January. The Justice Department filed suit against California almost immediately after it was signed into law.

The agreement between California and the Justice Department highlights how legally complicated the issue has become as states try to step in and regulate an area the federal government has chosen not to.

The Republican-led FCC voted in December 2017 to repeal rules adopted under President Obama's FCC. As part of the repeal, the FCC declared that states were prohibited from passing their own laws to impose net neutrality restrictions. But several other states, including California, Vermont, and Washington, have moved their own legislation forward. The lawsuit filed by the Justice Department and also joined by several broadband and wireless industry groups questions California's right to pass such a law, arguing that it interferes with interstate commerce. 

Meanwhile, attorneys general from 22 states and the internet browser company Mozilla have sued the FCC over the repeal of the rules. One of the questions addressed in the suit is this pre-emption of states' rights to enact their own net neutrality laws. 

Scott Weiner, the state senator who drafted California's legislation, said he supports the deal.

"Of course, I very much want to see California's net neutrality law go into effect immediately, in order to protect access to the internet," he said in a statement. "Yet, I also understand and support the attorney general's rationale for allowing the DC Circuit appeal to be resolved before we move forward to defend our net neutrality law in court."

The coalition of industry groups also suing California over its law applauded the deal, too. 

"California's decision not to enforce its law regulating the internet while the DC Circuit reviews the FCC's 2017 Restoring Internet Freedom Order is a win for consumers that will allow continued innovation and investment while these deliberations continue," the groups USTelecom, CTIA, NCTA, and ACA said in a statement. "Our companies support an open internet, and we urge Congress to resolve this issue by passing a national framework to protect that principle for all Americans." 

FCC Chairman Ajit Pai said in a statement that California's decision to hold off on enforcing this law shows how strong the FCC's case is in defending itself in the lawsuit challenging its rationale for repealing the rules.

"This substantial concession reflects the strength of the case made by the United States earlier this month," he said.  "It also demonstrates, contrary to the claims of the law's supporters, that there is no urgent problem that these regulations are needed to address."  

First published Oct. 26 at 12:28 p.m. PT.
Update at 12:33 p.m. PT: Adds comment from FCC Chairman Ajit Pai. 

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