The California legislature in 2011 passed a law to remove state and local authority over the broadband access market to “ensure a vibrant and competitive open Internet that allows California’s technology businesses to continue to flourish and contribute to economic development throughout the state.” Sounds good, right?
But that never happened. Instead, the broadband access market in California is heading into a high-speed monopoly that, for many, is more expensive and slower than many other markets. In fact, all the law does is protect broadband monopolies, and the major ISPs are working it hard to get it renewed through Assembly Member Lorena Gonzalez’s A.B. 1366.
Renewing the law rather than letting it expire carries significant consequences for California residents. This is because prohibiting the state’s authority over broadband access impacts everything that relies on broadband access. For example, as the Assembly signed off on renewing the law that has provided no tangible benefits to residents, AT&T was actively using it to block state oversight over the broadband-based 911 calling system known as Next Generation 911.
If AT&T wins, a critical emergency service would be built by a private corporation with no government authority to regulate it.
In a lawsuit AT&T filed against the Office of Emergency Services, it claims a broad immunity from state regulation by interpreting California law to mean that state and local governments have no power to oversee broadband services. In particular, the Office of Emergency Services requires all bidders with the state to build Next Generation 911 to submit to oversight by the California Public Utilities Commission (CPUC). AT&T’s claim is that since the CPUC (or any state and local agency) has regulatory authority over broadband, they can’t be forced to show things like how much they intend to charge the state or be subject to state audits to ensure they didn’t overcharge taxpayers for building an emergency system. Should AT&T’s argument carry the day, it would mean that a critical emergency service—literally a matter of life and death—would be built by a private corporation with no government authority to regulate it.
AT&T Wants Taxpayer Money to Build a New 911 System with No State Oversight
The transition towards Next Generation 911 has been part of a decade-long effort to transition 911 calls to a system where all broadband-connected communication devices can make emergency calls. It will, for example, help emergency responders deal with call overload and have more accurate information about where callers are. This improves public safety by giving first responders better knowledge and information about emergencies, a goal laid out in bipartisan federal law introduced by Congresswoman Anna Eshoo (D-CA) and Congressman John Shimkus (R-IL) in 2008.
AT&T argues that the state law says no state agency can regulate their broadband products, and therefore the Office of Emergency Services cannot force companies seeking taxpayer money to submit themselves to state oversight. That means if a broadband-enabled 911 call doesn’t work, the state and local government effectively can’t penalize, audit, investigate, issue rules or do anything to remedy the problem, simply because it’s a broadband version of the product. That is plainly unreasonable, but also clearly the point of the law they pushed years ago.
The irony in the litigation is that AT&T is relying on a law that is set to expire in 7 months, but appears to have confidence that the legislature will hand them their renewed law. Given that these companies had few qualms about throttling firefighters in the middle of a state emergency—a situation that the state legislature is working to ban this year with Assembly Member Levine’s AB 1699—we hope that California’s legislators avoid subjecting Next Generation 911 emergency calling to such a risky litigation space. Otherwise, companies that dislike the rules they’re asked to follow can sue to strike them down. Unlike other services, where some failure may be acceptable, emergency systems have to be functional 100% of the time, and are fundamentally a government concern for public safety reasons.
It is possible that AT&T’s lawsuit will fail, and the company will not duck state regulation for broadband based 911 services. In fact, the Attorney General of California’s response is persuasive as to why AT&T’s lawsuit is without merit, and the declarations filed by the state indicate AT&T truly is being suspect in its decision to avoid government oversight. But we will have to wait and see what the courts decide. The cleanest solution would be to not renew the law, which would terminate AT&T’s ability to file these kind of lawsuits and put an end to any future lawsuits of this nature.
Hopefully, this is a wake-up call to the legislature to illustrate how the laws they pass (or are about to renew) can be used by the industry that backs them. If companies are willing to claim oversight immunity from 911 calls, then there is nothing they wouldn’t use it against—and EFF believes they would regularly block efforts to promote competition. To stop this, Californians must contact their state Senators and ask them to vote NO on A.B. 1366.