Legislation that could slow broadband deployment is being opposed by the California Chamber of Commerce (CalChamber) and associations committed to preventing digital discrimination of access to internet services. AB 2239 (Bonta; D-Alameda) is scheduled for consideration on June 24 by the Senate Energy, Utilities and Communications Committee.
In a letter to legislators, the CalChamber and coalition opposing AB 2239 explain how the bill runs counter to the goal of providing greater access to reliable broadband.
AB 2239 will discourage internet service providers (ISPs) from undertaking new deployments and upgrading to the latest technologies because it incorporates a disparate impact standard rather than a disparate treatment standard. "The disparate impact standard will almost certainly be challenged in court and is contrary to good public policy," the letter stated.
The bill purports to regulate an overly broad set of practices under a very open-ended standard of liability, making it vulnerable to legal challenges. According to opponents, AB 2239 sets an unworkable standard for ISPs that would leave them exposed to potential liability relating to new network investments.
A better approach, according to the letter, is the far more common disparate treatment standard. This intent-based standard would ensure AB 2239 creates a workable and enforceable framework in California without relying on disputed aspects of a Federal Communications Commission (FCC) order currently being challenged in federal court.
Under a disparate treatment standard, broadband providers would not hesitate to undertake new deployments or upgrades or run consumer-friendly promotions for fear of frivolous claims and unwarranted liability. The letter asserts that this standard provides an important enforcement mechanism against actual and intentional discriminatory conduct without penalizing ordinary business decisions, thus preserving incentives to deploy and modernize broadband infrastructure.
The letter also points out that FCC digital discrimination rules are subject to legal challenges due to their broad regulation under disparate impact liability. Given these ongoing legal questions, it would be imprudent for California to effectively place these FCC rules into state law.
Additional concerns about AB 2239 include:
- The need for procedural safeguards such as reasonable time limits for resolving complaints;
- Ensuring that the California Public Utilities Commission is explicitly precluded from pursuing any general investigations or rulemaking on digital discrimination of access;
- Uncertainty over whether it will lead to frivolous claims; suggesting that the bill should include a statement clarifying it does not create a private right of action under its own terms or any other statute.