Clock Ticking on California ISP Privacy, Small-Cells Bills

Big business interests seek to “run out the clock” to avoid California legislators voting on broadband privacy rules based on the FCC rules repealed by President Donald Trump and Republicans in Congress, privacy advocates told us this week. The California legislature has a Sept. 15 deadline to pass pending legislation, but the state's chamber of commerce asked the state Senate leader to hold the privacy bill and he hasn't scheduled a vote. Meanwhile, big wireless companies are pushing for passage of small-cells legislation, but local governments remain opposed and plan to take the fight to the governor's office, a local lobbyist said.

The ISP privacy bill “is still in Senate Rules awaiting referral,” said a spokesman for Assemblymember Ed Chau (D), the bill’s sponsor: Chau “remains committed to getting something passed this year, before the Legislature adjourns for interim recess on September 15.”

The privacy bill is “stalled indefinitely unless Senate leadership agrees to move it,” said Center for Democracy Privacy and Data Project Director Michelle De Mooy. “We think the bill has enough votes to pass, and there is significant public support for it, so this move appears to be a way to silently stall until the clock runs out on the 15th.” The privacy bill is “stuck” in the rules committee, with opponents trying to keep the vote from happening, said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon. But passing it by Sept. 15 is “in the realm of possibility,” he said.

The decision on when to vote is up to Senate Leader and Rules Committee Chairman Kevin de León (D), who hasn’t stated a position on AB-375, Falcon said. De León didn’t comment. If passed in the Senate, the Assembly still would need to concur because AB-375 started life with a different subject. Responding to some lawmakers’ concerns, Chau revised AB-375 in late August to more closely mirror the original FCC rules, Falcon said. But lobbying against the bill has been “fierce” from vertically integrated national ISPs including AT&T and Comcast, he said.

The California Chamber of Commerce urged de León to hold AB-375 in the Rules Committee, in an Aug. 21 letter opposing the bill. “During policy committee hearings, the author agreed to gut the bill and align it with a Federal Communications Commission regulation,” the business group wrote in the letter forwarded to us by the chamber. “Instead of fixing the bill, these new amendments have compounded the problems. The amendments attempt to interpolate a federal regulation into state law without the entire regulatory framework.” That makes AB-375 “even more problematic” than the FCC rules, the chamber argued. “This bill would create a cumbersome, uncertain, and vague regulation of internet providers in California.”

Similar ISP privacy bills lost steam in other states this year (see 1707240033), and Falcon sees success in California as important to passing the privacy rules in other state legislatures. After California, “it will be like dominoes,” he predicted.

AT&T condemned the ISP privacy bill. "This last-minute bill that has not had the benefit of a single public hearing in the Legislature will lead to consumer confusion, diminish the Internet experience, and result in a hodgepodge of state-by-state regulations," a spokesman said. The carrier protects customer privacy and doesn't sell personal information to anyone, he said. Comcast, USTelecom and the California Cable & Telecommunications Association didn’t comment.

Meanwhile, the wireless industry is pushing for passage of small-cells legislation that aims to spur 5G deployment but would pre-empt local authority in the right of way. The Assembly Appropriations Committee voted 12-1 Friday for the Senate-passed S-649. It next goes to the Assembly floor, then the Senate must vote again to concur with Assembly amendments, said a spokeswoman for sponsor Assemblymember Ben Hueso (D). If passed, Gov. Jerry Brown (D) would have until Oct. 15 to sign or veto, she said.

The small-cells bill was tweaked more than 30 times across five iterations of the bill to address concerns raised by local governments and others, said two wireless industry officials. Local governments remain opposed even with the amendments, though momentum in the legislature is on industry’s side, said Best Best’s Syrus Devers, a California lobbyist for local governments.

“The amendments provided the wireless industry with talking points, but did nothing to address the substance of the concerns raised by local governments,” said Devers. For example, local governments said pre-empting their authority could prevent their legal authority to ensure compliance with the Americans With Disability Act, so the industry responded with an amendment requiring small cells to comply with the ADA, he said. That addressed one example, but not the underlying issue, of what happens when local discretion is removed, he said.

It's unlikely the bill can be stopped in the legislature, since lawmakers highly supported SB-649 in earlier votes, Devers said. Local governments will continue their fight at the governor's office and seek a veto from the governor, the lobbyist said. Cities sued Texas and Ohio over similar laws (see 1709010054). California cities likely would consider a lawsuit if the bill is enacted and they believe they have a viable cause of action, Devers said. “There’s a lot at stake." CTIA and the Wireless Infrastructure Association didn’t comment.