Did California Democrats vote to NOT save net neutrality?!
Last-minute amendments, weird legislative maneuvers, and Democrats vs. Democrats over an issue supported by Democrats.
Update July 5, 2018: Santiago, Wiener, and de León announce an agreement on net neutrality that bans slowing at the point of interconnection, blocking, throttling, access fees, and zero rating.
“Net neutrality equates directly to keeping a people-powered movement going. … Denying the freedom of information is a direct attack on our democracy. It is essential that we fight back,” said Santiago at today’s press conference.
Update on June 27, 2018: The amended version of SB 822 passed the Privacy committee and continues through the legislative process. The next deadline is August 17th.
Net neutrality supporters were gearing up for a big and easy win. Senator Wiener (D-San Francisco) was presenting his net neutrality bill SB 822 in committee. The committee’s chair, Assemblyman Miguel Santiago (D-Los Angeles) is also a Democrat. In fact, 9 of the 13 committee members are Democrats. Democrats control both chambers of the state’s legislature and the Governor’s mansion. You could’ve assumed that a vote to support net neutrality — and therefore oppose a Trump policy and FCC Chairman Ajit “I swear we were hacked” Pai — would be an easy slam dunk.
But that’s not how it went down.
The committee hearing was filled with highly unusual legislative tactics, Democrats fighting Democrats on issues that Democrats agree on, and the committee passing the bill 8–0 only after adding amendments, to which Senator Wiener said, “It is now, with the amendments, a fake net neutrality bill.”
What. Happened.
What went down in that committee hearing? What the ruling say about the future of net neutrality? Is it true that even blue-iest blue state legislature is bought and sold by corporate interests?
If you’ve been paying attention to how vigorously Democrats in Washington are in supporting net neutrality, along with the announcement of multi-billion dollar ISPs merging with content providers — (see: AT&T-Time Warner, Disney-Fox) — it makes sense that the neutrality fight has moved to California, the world’s fifth largest economy.
Net neutrality is not a single rule or one specific law. It’s a whole package of rules and regulations that tells your ISP what it is and isn’t allowed to do with the internet pipes and your access to it. For a quick explainer on net neutrality, check out this short FB Live video about the FCC repeal. And the really great breakdown from The Verge and Nilay Patel.
In 2015, the Obama Administration’s FCC implemented net neutrality. In 2017, the Trump Administration’s FCC repealed it. Two weeks ago, that vote took effect. Net neutrality is dead.
But there is a movement to save it.
A New Hope
California is best positioned to save net neutrality. California Democrats are constantly pushing back against this Trump Administration. California Attorney General Xavier Becerra has filed multiple lawsuits against Trump policies. Governor Jerry Brown has flown to China for meetings with President Xi Jinping on climate change and has promised to stay in the Paris Agreement.
Even the politicians in this committee hearing are active members of “The Resistance.” Kevin de León, lead author of the other net neutrality bill SB 460, wasn’t present at the committee hearing because he was in federal court defending his sanctuary state bill against AG Jeff Sessions’ Justice Department. And Miguel Santiago has released a public statement with de León denouncing Trump’s immigration policies. This is a busy and active resistance.
The vote on these net neutrality bills is way bigger than simply another committee vote. Its election season. Democrats are working hard to build voter confidence and excitement. California is the most prominent example of what it looks like when Democrats run the government.
In short, this hearing is a big deal.
What follows is an edited transcript from the Schmolitics Podcast of the first committee hearing and interviews with the lead authors of California’s two net neutrality bills — Senator Scott Wiener (SB 822) and Senator Kevin de León (SB 460).
Communications and Conveyance Committee — June 20, 2018
Assemblyman Miguel Santiago: I’d like to convene the Assembly Committee on Communications and Conveyance. Sergeant, please call the absent members. … Noticing the absence of Senator de León. … We’ll proceed with special order of business and would move to fall item number two, SB 822. Mr Wiener.
Senator Scott Wiener: Colleagues, nine days ago net neutrality ended in the United States. It ended because Donald Trump’s FCC erased essentially all federal net neutrality regulations. On top of that, last week saw the astounding approval of AT&T’s acquisition of Time Warner for $85 billion. A massive consolidation of internet access with media content. Comcast has now indicated that it intends to acquire 21st Century Fox for $65 billion. These are the same companies who are telling you that if they can’t charge interconnection fees to allow access, if they can’t block and throttle, that they’re gonna be poor and not be able to invest in their network. $85 billion acquisition, $65 billion acquisition. This means that AT&T, Comcast, and other internet service providers can now decide that you’re not allowed to use certain apps or visit certain websites on your phone. That’s the state of the world today. They can block, throttle, make it impossible, decide you can only go to these websites, you can’t go anywhere else, that’s where we are today.
Wiener goes on to describe to the committee what his bill would do.
Sen. Wiener: SB 822 standards broadly protect net neutrality. They prohibit ISP’s from blocking or throttling websites, from creating fast lanes and slow lanes, from charging to speed up traffic. SB 822 doesn’t just ensure net neutrality on the ISP’s own network, it also ensures that ISP’s don’t leverage where other networks feed into those networks, what’s called, “interconnection,” to avoid net neutrality. If you are protecting net neutrality only on the ISP’s network, but not at the point of interconnection, there’s no net neutrality. ’Cause all they have to do is block or throttle or slow you down at the point of interconnection and you have no net neutrality. SB 822 also bans corporate self-dealing, sometimes called zero rating, that is highly anti-competitive and anti-consumer and is a way for the ISP’s to force poor people to use only a small number of websites. These types of zero rating plans are highly, highly anti-consumer.
Schmolitics Interview with Senator Wiener
Dan Gordon: Senator Scott Wiener. Thank you for joining us on Schmolitics.
Sen. Wiener: Thanks for having me.
Dan Gordon: Before we actually get into what happened with the details of these amendments, I just have a question about process. Santiago’s amendments were introduced at 10 P.M. on Tuesday night and then these were voted on the next morning, as you pointed out in the hearing…
Sen. Wiener: We’re here for a hearing Mr. Chairman and we would appreciate having a hearing, which we’re entitled to on this bill.
A.M. Santiago: Only ’cause we have a motion before us I’d like to vote on it now. Just on the amendments.
Sen. Wiener: But without having a hearing Mr. Chairman? —
A.M. Santiago: — One second. We would still have a hearing.
Sen. Wiener: But you’re voting before — we’re entitled to a hearing and you’re voting before the hearing even happens? How is that appropriate?
Dan Gordon: You actually called that procedure “outrageous.” How unusual was that legislative move?
Sen. Wiener: It was very unusual. And I think that Assemblyman Santiago has acknowledged that it was not the best way to handle it. He’s apologized to me, which was unnecessary. I don’t really care about apologies. I just wanna pass my bill. But it was not a good way to proceed and in context I consider Miguel Santiago to be a friend. We work together on a lot of issues. He’s a good guy. We just have a real disagreement here, which I’m hoping we’ll be able to resolve. But normally the way it works is if a committee chairman or chairwoman is proposing amendments to your bill…you show up in committee, you begin to present your bill, and then you say I either accept the committee amendments or I don’t accept than. And if you accept them, then all is good. If you don’t accept them, then the chair may or may not oppose your bill and might mean your bill goes down or you have to have a fight with the chair, which is never fun. But that’s normally how it works. It’s not very common for a chair to force hostile amendments into your bill if you don’t want them. ’Cause it’s your bill. It does happen periodically. I have never heard of hostile amendments being forced into a bill before you even begin your presentation. So that was an extraordinary thing. I’ve talked to people, other people have not heard of that happening before. But again I do think that it’s something that Santiago has acknowledged that, that was not the right way to proceed.
Dan Gordon: You two enjoy a good friendship and working relationship. This is an internet-based issue. I mean, it’s a people issue, but it has so much to do with the internet. And so the wrath of the internet really came after Chairman Santiago and I did see that you came to his aid and said, “You can attack us for our positions. We’re public officials. That’s part of the game. But you’re crossing a line when it becomes personal, you go after our families.”
Sen. Wiener: You know, I’ve come up through San Francisco politics, which are about as rough as they get. We take our politics really seriously in San Francisco. And I get criticized all the time for different positions that I take and it can be hard, but it’s very appropriate. People can harshly criticize me. Sometimes when people get personal, it just takes it to a different level and it’s not necessary. Net neutrality is a really important issue and I very much disagree with what assemblyman Santiago did with the amendments, but he forced into the bill in the way that he did it. And there’s plenty to criticize there. There’s really no need to make a personal and there’s never a need to involve someone’s family. Families give up a lot to have a spouse or a parent in politics and the last thing that should happen is for them to be dragged into it. So we should just keep it on the merits of how important net neutrality is.
Dan Gordon: I wanna talk about the committee’s amendments.
Sen. Wiener (in the hearing): The committees amendments eviscerate the bill and eliminate core net neutrality protections. The amendments turn this bill into a bill that does not actually protect net neutrality. It is now, with the amendments, a fake net neutrality bill. The amendments cherry pick from the Obama 2015 net neutrality order. And this is an order that was 100’s of pages long, and basically take two pages and says, “This is all we’re doing.” And ignore everything else.
Sen. Wiener (hearing, cont’d): These amendments make this bill fall far short of the Obama 2015 net neutrality order. Despite what AT&T and others are saying intensely lobbying this committee. That is not true. This bill is now far short of where the Obama order was. The committee amendment allow the ISP’s to create fast lanes to enhance or speed up favored websites who pay more while regulating everyone else to a slower traffic lane. This bill allows for fast lanes for companies that have enough money to pay for it. The committee amendments will allow AT&T and other ISP’s to throttle an entire class of applications. So, for example, AT&T could decide that it is going to throttle all telephony applications like Skype or Vonage because those are competing against AT&T’s telephony services. The amendments do not prohibit that. The committee amendments will allow AT&T to engage in corporate self-dealing by favoring its massive Time Warner media sites over competitor sites by saying, “Hey. If you use my media sites, it doesn’t count against your data. If you use my competitors, you’re gonna have to pay data.”
Sen. Wiener (hearing, cont’d): The committee amendments eliminate the bills prohibition on “engaging in deceptive or misleading marketing practices that misrepresent the treatment of internet traffic.” That was deleted in the amendments that you just adopted. The committee amendments allow ISP’s to charge website gatekeeper fees for access to ISP customers and if they don’t pay, those websites would become invisible to consumers. Again, the whole point of net neutrality is that we get to decide where we go. That the ISP’s are not the ones to pick winners and losers. Yet that is exactly what the amended version of the bill that this committee just voted to adopt before even hearing the bill will do.
Dan Gordon: I wanna read you something from Assemblymember Miguel Santiago’s press release following the committee hearing. He says, “I love the senator’s passion, his drive, and the integrity of his work. As chair of the committee, I wanted to engage in a serious policy conversation and deliver a bill that could withstand legal challenges from the telecommunications industry.” Even if you don’t agree with that strategy, does that make sense? Because it seems to me that regardless of whatever the content of the bill is, if it has anything to do with net neutrality, AT&T, the telecom industry, even perhaps the Trump Administration might say that this flies in the face of federal policy.
Sen. Wiener: Yeah. I don’t agree with that statement by Miguel. You’re absolutely right. The telecom and cable companies take the position that California simply has no power to protect net neutrality, that we’re powerless. It’s a pure federal issue. We don’t agree with that. We think we do have power under our authority to protect the health and safety and welfare of our state to do that. So you could pass a narrow net neutrality bill, you could pass a toothless one, which is what Mr Santiago amended to the bill, it made it a toothless bill, you could pass a strong bill, doesn’t matter.
Sen. Wiener (cont’d): They’re gonna sue, they’re gonna make the same argument that we don’t have the power, and whether it’s a weak or a strong bill, they just don’t wanna set any precedent that any state could ever tell them what to do. So I disagree with that strategy. I also, although anytime a chair says, “Hey. I wanna make your bill more defensible.” I, as the author, that’s really my decision to make. There’s always gonna be litigation risk. There’s always a risk that a court may say that you don’t have the authority to do what you’re doing, but as an author here, we worked for a long time with experts, with people who used to work at the FCC, with people who have been doing net neutrality work for decades, with very respected computer science professor whose been immersed in this issue for a long time.
Sen. Wiener (cont’d):We worked with the right people to craft a strong comprehensive bill that can withstand legal challenge whether it’s by Donald Trumps FCC or by AT&T and we’re comfortable with the defensibility of the bill, if that’s a word, defensibility.
Dan Gordon: I know we really can’t get inside his head or the committees heads and understand why, but … there’s a line that people are drawing between the money that AT&T and the telecom industry gives to the party, to the campaigns of these elected officials. But you also were at the Speaker’s Cup (see: Voices of Monterey, CalMatters) and you’re the one introducing this net neutrality bill. Do you think there was outside influence by AT&T and the telecoms?
Sen. Wiener: I don’t wanna speculate as to say what were Santiago’s motives. Like I said, he’s a good guy. We just had a disagreement here. And here’s the thing. We all … I’m all about public financing of elections and unfortunately the voters banned public financing of state elections in California a long time ago. I hope we can undo that ban one day because I think it’s much better to have publicly financed elections than have to raise money. But we don’t. And so we have to raise money.
Sen. Wiener (cont’d): And we all raise money from a wide variety of sources. Lot of different donors ranging from very small individual donors to wealthy people to folks in the business world or in the labor world or whatever. And the thing about being in elected office is sometimes you have to say no to the people who support you and we all do that at times. There are times when you might have an individual whose supportive of you, you might have a labor union, or a business or an association that supports you and you respect them and work with them, but then there’s a time when you disagree. I have a good relationship with AT&T, with Comcast, with Verizon.
Sen. Wiener (cont’d): I’ve worked with them before. There are times when I agree with them on policy issues. No one is wrong all the time, no ones right all the time. On this issue, they’re wrong. They’re taking a position that is intensely anti-consumer, anti-competitive, anti-innovation, anti-democratic. They wanna put themselves in the position where they get to decide where you and I go on the internet, where they get to decide who wins and who loses on the internet. And that is none of their business who wins and loses. It’s none of their business where you or I go on the internet. And so I have a relationship with them, but they are just wrong.
Sen. Wiener (cont’d):And so I think it’s important for elected officials to be able to disagree with our allies. And I think here assemblyman Santiago just had a different view as a matter of policy and he and I disagreed and we talked about it quite a bit. And I just disagree with him. But I’m not gonna speculate as to motive. I think he did what he thought was the right thing and I just think it was wrong.
Dan Gordon: And last question. Chairman of the California Democratic Party Eric Bauman issued a statement saying that you and Miguel Santiago are going to work together to come up with a compromise. What does a compromise look like and what’s the path forward for net neutrality?
Sen. Wiener: Yeah. And I really appreciate that Eric Bauman has gotten involved. I actually spoke with him back on either Thursday or Friday and I spoke with him again this morning and he’s been very engaged and he’s very interested in resolving this and having us pass a strong net neutrality bill. So I appreciate that. And so assemblyman Santiago and I, we’ve begun conversations and we wanna resolve it quickly. And it’s not about compromising for the sake of compromising. As I’ve said, the bill, as amended by his committee is a bill that’s not worth passing. And so we have to fix it.
Sen. Wiener (cont’d): I don’t wanna just add in a few things and have a bill that you can drive a Mack Truck through. I want a real net neutrality bill. So we’ve talked about some of the real bottom lines for a strong net neutrality bill. To regulate net neutrality or protect it at all points of a network. Not just in some areas, but not others. To make sure that there aren’t loop holes. We know what our bottom lines are and we gotta get those back into the bill.
Interview with Senator Kevin de León
Dan Gordon: State Senator Kevin de León, who is also currently a candidate for U.S. senate in California.
Senator Kevin de León: Dan Gordon. That’s an interesting name. Dan Gordon.
Dan Gordon: Yeah. British people like to make fun of me for having two first names.
Sen. de León: Do they really make fun of you?
Dan Gordon: Yeah.
Sen. de León: So what do we wanna talk?
Dan Gordon: You have this bill SB 460. First of all, what is the difference between your bill and Senator Wiener’s?
Sen. de León: Well Senator Scott Wiener and I have agreed to join forces. He’s a wonderful member of the California state senate. We’re colleagues, we’re friends, and we joined forces. What that means also to is that we’ve even joined our bills, which means the fate of his bill and the fate of my bill are inextricably linked to each other. Therefore both measures have to pass. Wednesday at the hearing, I wasn’t at the hearing Wednesday. I was at a U.S. federal court house at the first hearing of Donald Trump and Jeff Sessions lawsuit against California because of my bill, Senate bill 54, the sanctuary of state bill. It was the first hearing.
Sen. de León: My bill deals with contracts with the state of California as it relates to net neutrality. I think it’s unfortunate that what took place on Wednesday with regard to Scott Wiener’s bill, but I have spoken to both Scott Wiener as well as Chairman Miguel Santiago and have implored both of them to come together and then I will bring them together so we can sit down and define common ground so we can move a policy together that will protect consumers of California and restore net neutrality to California.
Dan Gordon: There were specific amendments that Santiago made that I don’t quite understand. I’d like to hear where you think the middle ground is on these things? So, for example, some of the amendments that Santiago included was to allow for the creation of fast lanes, throttling of applications, and also allows corporations to do corporate self-dealing. So these are things that prevent fair and equal access for consumers.
Sen. de León: Well the one thing is that I always made very clear from day one when I introduced my net neutrality bill and I don’t know if you have the language or my office can get you the language of my net neutrality bill. It’s included and it’s got wins as well, is we didn’t want any throttling. We didn’t want any highway express lanes and going to the highest bidder, for those who have the financial where with all in exasperate, if you will, the inequities that currently exist.
Sen. de León: We didn’t want ISP’s to be in that position, an all mighty, all powerful position to start extracting what they want to extract from the consumer.
Dan Gordon: Where do you see any potential middle ground on something like this because this seems like it’s either yes we are for these protections or no we’re against these protections?
Sen. de León: Yeah. That I agree 100%. But that — I don’t find a middle ground. When I said “the middle ground,” I was talking about overall, without going to detail of each component or each suggestion. Say, for example, on the issue of throttling, slowing down, there’s no middle ground. It is what it is. Period.
Dan Gordon: Because you know the game, you know the politics, you know the players, you often talk about in your speeches running for U.S. senate right now how California can be leading the way for the rest of the country and be a model for what a democracy looks like, what progressive policies look like. So what do you see is the path forward now?
Sen. de León: Well listen. Net neutrality was not the law of the land, but net neutrality through the regulation process under the Obama Administration were the rules that were established. Obviously, with this Trump Administration and with the current Chair of the FCC, they’re rolling this back, which harms consumers across the nation. I think that other states have been very exemplary in terms of how they maneuvered very quickly to protect net neutrality. California has always been a leader and an innovator. I’ve disrupted the status quo. One it doesn’t push the envelope or rather tears the envelope apart.
Sen. de León (cont’d): And we should be a leader when it comes to protecting our consumers and giving them access to a free and universal internet that we use for personal reasons, for communication, for family, friends, loved ones, for our own businesses to grow and to expand. Having access is vital to our livelihoods in every which way imaginable. And to have ISP’s, I don’t care who they are and who they’re giving contributions to and how much. For them to be that balancer. Stopping certain folks and allowing other folks to have entrée is unacceptable and I think that’s why California has to establish once again net neutrality.
Sen. de León (cont’d):We have no other choice and that’s why I’m committed to hammering a deal over the course of the summer break so we can provide consumers to continue to access, free universal access to the internet.
How Does It End?
The result of that committee hearing on SB 822 ended with the committee voting 8to 0 to pass SB 822 with Chairman Miguel Santiago’s amendments. Senator Scott Wiener wanted his name pulled off of the bill as the main author. That is highly unusual for the bill to continue without the main author attached to it. Miguel Santiago wrote:
My committee moved the bill forward. By doing this, net neutrality remains alive in California where it will continue to be discussed, debated, and improved so that it can have the benefit of added policy discussions. Public policy is often messy. It is complicated, it involved compromise, and working through conflict. Californians have the best shot at net neutrality protections. We have not mended all of our fences, but we will work hard to do so. Because that is the democratic process.
Senator Scott Wiener’s press release also reflects the optimism of these negotiations.
Senator Wiener, along with Senator Kevin de León (D-Los Angeles), has been meeting with Assemblymember Miguel Santiago (D-Los Angeles) and others about restoring SB 822 so that it contains the protections found in the 2015 FCC order that were repealed under President Trump. With today’s vote by the Privacy Committee, those negotiations will continue. SB 822 must be passed out of the Assembly Appropriations Committee by August 17, after which it would go to the floor.
Dan Gordon is the host of the Schmolitics Podcast, an OFA Team Leader to get out the vote for November, and an elected delegate to California Assembly District 53.
