We Oppose AB 2212 California Retail Food Code

April 17, 2018

The Honorable Jim Wood, Chair
Assembly Committee on Health
California State Capitol, Room 6005
Sacramento, CA 95814

Subject: AB 2212 California Retail Food Code – OPPOSE

Dear Chairperson Wood,

We write to express our concerns regarding AB 2212 (Ting) as it seeks to amend Section 113985 of the Health and Safety Code and add subscriptions-based meal delivery services to the existing definition of “retail;” a change that would include food processors that sell direct to consumers. We would note the language in AB 2212 is the exact same language approach used last year in AB 1461, which Governor Brown vetoed just six months ago.

As a technology advocacy organization, we seek to support California’s advancement as a state where innovative ideas blossom into new industries, companies and jobs while maintaining well-crafted rules and regulations to protect the public.

California’s food processing industry is evolving rapidly to keep pace with consumer demand and competition in the marketplace. Applying regulations as outlined in AB 1461 and mirrored in AB 2212 will inhibit this industry from modernizing and maintaining a competitive advantage with other agriculture states. AB 2212 will only encourage food processors to locate their facilities outside our state and ship to California customers from places like Nevada and Texas. Additionally, the language in AB 2212 will not only directly impact California-based food processors currently package foods for this intended purpose, it has the potential to impact all food processors and stifle their ability to expand their business model to include direct-to-consumer services.

AB 2212 is not necessary as food processors and manufacturers are already heavily regulated by both the U.S. Food and Drug Administration (FDA) and the California Department of Public Health (CDPH) as they often distribute food throughout the contiguous United States (including those that do so via subscription and provide recipes).

In contrast, the Food Handler Card program is a retail requirement enforced by local public health officers on the county level. It makes little sense, and would be impossible, for one food processor to be subject to the oversight of California’s 58 different local health

agencies, especially given that they are already required to comply with stricter food- safety and training standards enforced by CDPH and FDA.

Governor Brown recognized this in his veto message of AB 1461 last year where he encouraged the Legislature to work with the Department of Public Health and interested stakeholders to ensure food safety is protected and innovation is encouraged.

CALinnovates is fundamentally opposed to AB 2212 as it stifles innovation by adding excessive and unwarranted regulation to food processors that sell direct to consumers. We respectfully urge the Assembly Committee on Health to oppose AB 2212.


Kish Rajan
Chief Evangelist

Assembly Member Mayes (Vice Chair)
Assembly Member Aguiar-Curry
Assembly Member Bigelow
Assembly Member Bonta
Assembly Member Burke
Assembly Member Carillo
Assembly Member Flora
Assembly Member Limon
Assembly Member McCarty
Assembly Member Nazarian
Assembly  Member Rodriguez
Assembly Member Santiago
Assembly Member Thurmond
Assembly Member Waldron


Mike Montgomery: Title II And Common Carriers: How The FCC Can Save Net Neutrality And Still Ruin the Internet

By Mike Montgomery

Prolonged discussions of Federal Communications Commission regulations are typically about as stimulating as a fistful of Ambien — except when it comes to net neutrality.

With the FCC poised to issue new rules governing how Internet service providers manage and price the traffic that flows through their networks, Americans woke up and spoke up so loudly that they crashed the agency’s website last month. The million-plus comments from concerned citizens were the most the FCC has ever received during a proposed rule’s public comment period — and just a few hundred thousand shy of the number of complaints that poured in after Janet Jackson’s infamous “wardrobe malfunction.” When we’re comparing tech regulations to Super Bowl nipple slips, you know we’re in a different kind of debate.

You probably haven’t had a chance to read all 1,067,779 comments. Neither have I. But most support an outcome preserving the wide-open Internet that birthed our current era of innovation, transformation and disruption. The question now is how to achieve this.

The debate so far has been oversimplified: Are you for net neutrality or against it? That reductive framing may lead us to embrace a solution that doesn’t solve the problem.

From where I sit at CALinnovates, representing tech companies dependent on the open Internet to survive, this debate is incredibly important. Disruptors like ride-share platform Sidecar and conference-call service Speek shouldn’t be forced to bid against deep-pocketed giants — or anyone, for that matter — for their share of bandwidth. Nor should they be forced to adapt to regulations that would suppress new ideas or hamstring the entrepreneurs who hatch them.

They, along with countless other startups and aspiring innovators, agree: We need an outcome that preserves the openness of the Internet.

Unfortunately, it’s not so simple. Let me explain. The leading proposal in Washington to achieve that goal is to reclassify broadband providers as “telecommunications services.” This would allow the FCC to regulate providers using authority granted it under Title II of the Communications Act of 1934.

As you have undoubtedly noticed, the Communications Act of 1934 was passed in 1934. That means the FCC is gathering input as it considers adopting the same legislative framework for the Internet that existed back when “wireless” meant the hand crank on your grandparents’ AM radio.

Title II turned our nation’s telephone system — a single network operated by a single company, Ma Bell — into a highly regulated utility, just like water and electric companies. While they helped protect consumers from the excesses of a corporate monopoly, Title II’s restraints hardly made that phone network an innovative one.

Ask your parents: Under Title II, innovation in telecom meant being able to buy a different color of the same phone chosen by the monopoly at a price set by the government. This same law can’t accommodate today’s sprawling, bustling, magically fragmented Internet, a miracle of technology unimaginable in 1934 — or even in 1996, when the act was updated for the “modern” era.

By turning the Internet into a utility, we’ll bleed tech innovation with a thousand paper cuts. Would we even know what an iPhone is if Steve Jobs had to run his pricing models past the FCC? Would Twitter be fomenting revolution if Jack Dorsey needed to check with regulators about what kind of data can be shared online and by whom?

It sounds far-fetched, but that’s how it would work. Under Section 214 of Title II, common carriers have to ask for approval before discontinuing nonperforming platforms or launching new ones.

Shoehorning Internet companies into Title II and treating them as common carriers won’t just slow Silicon Valley down to Beltway-at-rush-hour speed; it will also render impossible a great many things that have become part of our daily routines, like using on-demand services from location-based smartphone apps.

Under Section 222 of Title II, companies have a duty to protect the confidentiality of customers’ proprietary network information. Sounds benign, right? Well, it means wireless location data could no longer be shared with Internet companies for mapping or advertising. Location-based companies would be limited by, in the regulators’ lyrical stylings, the “use or disclosure” of “call location information concerning the user of a commercial mobile service.” In plain English, that means companies like dating service Tinder, car navigation service Waze and ride-sharer Uber could soon become relics of the past. At the least, they would have far higher hurdles and costs in launching and attracting investment capital.

The big losers in all this would very likely be startups and the consumers they seek to serve. For large, established digital companies, these new regulations would probably just be an inconvenience. For startups that don’t have the resources to fight Title II classification, or the in-house legal teams to interpret the new requirements, the rule changes would be a death knell.

Before we trade the devil we know for the devil our grandparents knew, we should pause to ask ourselves whether legally defining the Internet as a utility will keep it both open and innovative — or act as a drag on creativity and growth.

I’m pro-net neutrality, but anti-1934-style strangulation. Where does that leave me? According to the approaches under consideration, I may soon be a man without a country. Good thing the Internet, at least for now, doesn’t require a passport.

Mike Montgomery is the Executive Director of CALinnovates,

This piece was originally published in The Huffington Post.

Mike Montgomery: New Report by Faulhaber, Singer, And Urschel Shows That In Tech-Driven Economy, FCC Needs To Step Up

By Mike Montgomery

It’s clear that technology is a key driver of prosperity in today’s modernizing economy. Trillions of dollars in economic activity flow through the networks which make up the internet, making America’s digital economy the envy of the world. Networks are redefining the services people consume and the income people derive. For example, according to a Pew survey, 72 percent of Americans have used a sharing or on-demand service.

That’s why the Federal Communications Commission has never been more important. From last year’s Net Neutrality rules to current proceedings about set-top boxes, internet privacy and business services, FCC rules are shaping the future of the internet – and the broader economy that it fuels. Whether you agree or disagree with these regulations, everyone agrees they will have a profound impact.

That is why it’s so disconcerting to see the FCC disconnected from the economic impact of its decisions. In a report he published in July, the FCC’s very own former chief economist, Gerald Faulhaber, Ph.D., along with economists Dr. Hal Singer and Augustus Urschel, raised alarms about the agency’s dangerous turn away from economic analysis in its decision making.

In the report, Dr. Faulhaber, Dr. Singer, and Urschel ask: Why do the U.S. Department of Labor, the U.S. Environmental Protection Agency and the Consumer Financial Protection Bureau all conduct stringent cost-benefit analyses on their decisions while the FCC does not?

The FCC has simply become too important to the economy for it to fail to explore the economic impact of its decisions. For example, numerous economists warned the FCC that its decision to impose so-called Title II regulations on internet service providers, which treats today’s advanced broadband access in the same way as telephone services from generations ago, will have a negative impact on investment and innovation while not solving the issue we all want addressed: how to ensure that internet traffic is treated fairly across networks, regardless of where it comes from. Yet, when issuing its Open Internet Order, the FCC conducted no economic analysis of the impact its proposed rules would have on consumers, innovation or investment.

How is that possible?

The problems continue. The FCC is currently facing a major backlash from Congress, Hollywood and many innovators for its proposed new technology standards for set-top boxes.

Economists and legal analysts, including Harvard’s Laurence Tribe, are protesting a new FCC proposal to apply stifling “opt in” rules for internet privacy – distorting the market by creating arbitrary and inconsistent requirements for the same data when it is used by different companies and precluding companies from even the most mundane communications with their customers.

The agency is even considering abandoning years of economic precedent on whether and how markets should be regulated to impose rate regulations in business services where competition is thriving.

How the country utilizes spectrum is another issue where the FCC seems intent on picking winners and losers instead of maximizing the economic value of this public resource. In other words, once again, economics is taking a back seat to some other agenda.

If the FCC had undertaken rigorous economic analysis and evaluated the costs and benefits of these proposals it could have avoided these controversies and worked toward genuine consensus on pro-consumer, pro-innovation policies. That is what we should expect from a government agency that is supposed to be a subject-matter expert.

Traditionally, responsibility for managing the economy fell to the White House, the Treasury Department and the Federal Reserve — all economically expert operations. But the FCC is now elbowing its way into this mix by flexing jurisdiction over the internet and much more. But as the saying goes, with great power comes great responsibility.

So what can be done? If the White House isn’t prepared to insist the FCC factor economic impact into its decisions, it will be up to Congress.

Lawmakers have many tools at their disposal. Oversight hearings can shine a light on how the FCC makes its decisions. Congress can ask the Government Accountability Office to investigate how the FCC factors economics into its decisions – or fails to. And, of course, if Congress thinks the FCC has made decisions based on faulty or no economic reasoning, it can pass legislation to overturn faulty rules.

Hopefully the FCC will take stock of the criticism from people – like Faulhaber– who know it best, and make changes that will help the agency take the economic impact of its decisions into account.

After all, if the FCC wants to sit at the “adult table” when it comes to deciding our economic future, the very least we can expect them to do is their homework. According to Dr. Faulhaber and others, the agency hasn’t earned that seat just yet.

Mike Montgomery is executive director of CALinnovates, a San Francisco-based technology advocacy coalition.

This piece was originally published in Morning Consult.

New CALinnovates Study: The Curious Absence of Economic Analysis at the Federal Communications Commission: An Agency in Search of a Mission by Faulhaber, Singer, and Urschel

As the FCC examines and considers adopting new regulations related to privacy, CALinnovates, a coalition of technology leaders, startups and entrepreneurs, offers the Commission new analysis in the attached paper, “The Curious Absence of Economic Analysis at the Federal Communications Commission: An Agency In Search of a Mission,” Former FCC Chief Economist Gerald R. Faulhaber, PhD and Hal J. Singer, PhD reviews the agency’s proud history at the cutting edge of industrial economics and its recent divergence from policymaking grounded in facts and analysis.

Mike Montgomery, CALinnovates: Some Title II And Common Carrier With Your Morning Coffee

By Mike Montgomery

There’s no question that the tech companies in California are the leaders in innovation – almost all of the great technologies that touch your daily life began in California, and before you have your morning coffee, you probably interact with a dozen of them.  That’s why it’s so disconcerting that here’s a controversy playing out far from the sunny shores of the Golden State that could threaten California’s leadership in innovation.  The threat stems from the FCC and the debate over “Net Neutrality” – a philosophy in the tech world that means information on the internet should be treated equally.  But like most things in politics, it’s more complicated than it sounds:

As part of its attempt to shape the concept of net neutrality, the FCC has begun proceedings to redefine a small piece of law written over a decade ago.  Title II of the 1996 Telecommunications act (great grandson of the 1934 Communications act which created the FCC) enforces specific regulations against telecommunications carriers but not against carriers providing information services – this is what the FCC wants to change – they want the authority to regulate information services.

In technical terms, Title II is basically the argument about how to regulate data and bits (data rides on the bits) – either together or separately. Today, data and bits are treated the same under decades of FCC regulation – the idea being that not regulating transmission will spur investment and innovation. The new FCC believes there is a difference though between data and bits.  They would like to separate the two, and turn any information provider into a common carrier.  For example – under Title II, Apple would have to contribute 15% of their iTunes income into the Universal Service Fund.

Now for the easier way to understand Title II:  Think about it in terms of your local pizza place.  When you order a pizza, you pay one price for the pizza and the delivery.  That’s how the internet works – when you buy a song on iTunes, you pay not only for the song, but for the delivery of that song to your computer.  When the internet was first debated by the federal government nearly 40 years ago, they decided that to spur investment and innovation in the tech sector they should not regulate the transmission of data – the delivery of an iTunes song to your computer.  That’s the crux of the Title II issue:  the FCC wants the power to regulate not just the pizza, but also the delivery of that pizza.

If something touches the internet today it’s generally unregulated, meaning there are few if any government regulations driving costs or governing innovation.  If Title II is changed, the FCC will have the power to determine what it regulates.  The result could be increased costs for technology companies, passed on to consumers and taken out of our economy in the form of lost jobs and investment in innovation.

CALinnovates is dedicated to supporting innovation and technology throughout California.  We are concerned that the adoption of the proposed changes to Title II will undermine the very innovation that the FCC should be protecting.  Two years ago eBooks were unheard of, today Amazon sells more digital books than paper books – this same scenario is playing out across the tech sector – there’s no problem with the internet and innovation, so why is the FCC trying to fix it?  We’re not convinced they should be.

Just a few years ago California communities were bombarded with advertisements from dozens of VOIP telephone companies springing up across the country with the promise of cheap hassle-free telephone and conference calls – then the FCC regulated them – and all but a few disappeared.  The FCC’s solution in search of a problem put companies out of business and Californians out of jobs.

The slippery slope doesn’t just end with our economy – tinkering with Title II could lead to problems with data transmission as large companies and start-ups alike try to cut costs; we could face several presidential election cycles of policy gridlock resulting in a chilling effect in angel and venture capital; innovation in the cloud, which today has seen unprecedented growth, could slow, or worse, stop.

Consider Netflix for a moment.  Just today they announced that more than 60% of their users are streaming movies.  Without even realizing it, Netflix customers now expect the company to provide data storage, fiber optic transmission capabilities and signal quality all for $8.99 a month – but if the FCC subjected Netflix to the common carrier requirements of Title II those low monthly fees would be history.

Even Google has entered the fray.  Yesterday they fired off a policy missive to the Federal Trade Commission saying that new regulatory proposals could undermine the functioning of a healthy marketplace and stall the pace of change.

The current framework governing the tech industry has worked well for 40 years. For most of that time the California tech industry has felt almost immune to actions in D.C. – but we can’t afford to keep our heads in the Cloud any longer.  CALinnovates is concerned about Title II and it’s potential impact – and we want to hear from you.  Through blogs and emails, phone calls and status updates, we want to hear your thoughts and opinions on Title II.

As a tech community, we should be concerned about the federal government tinkering with the laws that could impact our industry.  We should require them to use the same scrutiny and diligence to change laws that we use before releasing a product or investing in an idea.  In order to stay on the forefront of the global marketplace and make certain that California stays competitive, we need to continue to find ways to work with policy makers to foster growth, innovation, and economic activity in order for us to continue to be the tech global leader.

Mike Montgomery is the Executive Director at CALinnovates.

Mike Montgomery, CALinnovates: The FCC’s Unintended Consequences Problem

Too often the agency’s rules end up stifling innovation.

By Mike Montgomery

The Federal Communications Commission (FCC) is developing a nasty habit of passing rules that end up doing more harm than good. These rules may initially be well intentioned but the end result is that some certainly stifle innovation. We’re seeing a very clear example of that right now in the Wi-Fi router industry.

Last year, the FCC put rules in place to stop people from messing with the radio frequencies (RF) inside Wi-Fi routers. They wanted to make sure that the RFs didn’t interfere with things like medical devices and weather radars. They didn’t mandate that router boxes be locked to all modifications, but they also didn’t think through the potential ripple effects of the mandate.

In response to the new rules, a router company called TP-Link went ahead and locked its boxes to all outside modifications, which could have a chilling effect on future innovation. The reason — it was too difficult to block users from one part of the box (the radio frequencies) and give them access to other parts of the box. It was easier and cheaper to just block users from tampering with the software all together. When customers complained, TP-Link told them to call the FCC.

This might seem like an obscure incident that only hard-core tech enthusiasts would care about but it points to a larger problem. The FCC is quick to make decisions that might work politically but don’t work practically.

The consequences of the commission’s actions are that thousands of tech entrepreneurs who are working on new business plans have to think twice before launching new and innovative platforms and solutions given the way in which the FCC’s words don’t always match their actions.

As my organization, CALinnovates, has also noted, there’s a huge risk for unintended consequences around another issue the FCC put on its plate recently — your television’s set-top box. This is a scheme to put television set-top boxes on shelves in online or physical retail stores so that instead of getting a box from your provider, you instead have the option of getting your own — much like you can today with a TiVo box.

Yet, there is no public outcry for retail cable boxes in the first place so why is the FCC even considering this move? Furthermore, the future is an app-based world, not a set-top box world. But if the FCC adopts its proposal, the consequences will extend well beyond retail shelves. It would destroy the ecosystem that has created the TV renaissance we are experiencing today that is built on carefully structured deals between studios, networks and content providers. The FCC’s proposed set-top boxes could become akin to watching YouTube — pop up ads and all. There are simply too many unanswered questions and not enough clarity from the FCC to sort out the truth.

The FCC needs to move more slowly and deliberately here. Often times the tech community wants regulatory agencies to move at the speed of innovation, but in the case of Wi-Fi routers and set-top boxes, the FCC should be spending more time contemplating the consequences of its actions. By not understanding the inner workings of Wi-Fi routers, the commission foreclosed a thriving area of innovation and creativity. If the FCC doesn’t reconsider its set-top box idea, it risks doing untold harm to the massive tech and entertainment industries that exist around television and deliver the very shows that have led to the current golden age of television.

Mike Montgomery is executive director of CALinnovates.

Mike Montgomery: FCC Proposal Threatens Innovation, TV’s Current Golden Age

By Mike Montgomery

By any standard, it’s never been easier to watch what you want, when you want it, how you want it. Things like AppleTV, Roku and Amazon’s Firestickbring Internet streaming to your television while apps like FXNow, HBOGo and WatchESPN bring television viewing to tablets and phones. The viewing worlds are converging and all of us who love TV are much better off because of it.

Yet for some reason, the FCC is trying to scramble the delicate balance that has enabled this Golden Age of content by forcing cable and satellite companies to undo the intricate deals they have put together with content creators in Hollywood and around the world to distribute the content consumers enjoy access to today and open those streams up to anyone who wants to repackage them.

The FCC claims that the proposal is meant to spur innovation. But that seems to be a ridiculous statement on two fronts.

First, we already have plenty of competition and innovation coming from new streaming boxes. Look at Apple TV, Roku, Chromecast, etc.

Second, the proposal actually undermines the cable and satellite companies’ incentive to innovate. Under the FCC’s proposal, the companies would have to disclose any technological innovation before introducing it. This would give any competitors plenty of time to copy those innovations and implement them on their own.

Would the companies that are clamoring for this deal want that same standard to apply in the tech industry? From my view running a tech advocacy coalition, the answer is a resounding “NO!”

When companies are in startup mode or are introducing a new technology, they intentionally stay as quiet as possible in order to avoid tipping off competitors. Stealth mode isn’t a myth. Establishing an environment where many of the innovators don’t have the option to stay quiet will simply chill any innovation that could respond to consumer demand.

That will be bad news for consumers. Sure, cable set-top boxes are, by and large, not the most beloved piece of equipment people have in their living rooms. But outside of the FCC, it’s a challenge to find anyone who believes the future of content consumption is through a box rather than an app that can be accessed by a myriad of devices.

All indications are that regardless of what the FCC does, cable boxes are going the way of the dodo bird. As TV viewing becomes more and more internet-based the cable and satellite companies will adapt and adjust to meet viewers’ needs.

The FCC’s proposal puts the entertainment industry into a double bind. Not only do they have to open up their proprietary technology and carefully crafted deals to any and all takers but they also have to tip their hand on any planned innovations.

All of this to fix a market that is not broken.

The FCC should take a closer look at what’s really going on in the market and drop their proposal. It makes no sense and won’t help consumers. Disruption and innovation are defining not only the content we watch but the way we watch it. Intervening at this point seems a bad use of policymaking. The smart move by the FCC would be to allow consumers to decide how the ways in which they choose to access video content.

Just because we are living in an era of technology disruption doesn’t mean we need policymakers like the FCC to be unnecessarily disruptive. 

Mike Montgomery is executive director of CALinnovates.

Mike Montgomery: Congress Must Resolve Net Neutrality Once And For All

By Mike Montgomery

When the U.S. Court of Appeals backed the Federal Communication Commission’s (FCC) so-called net neutrality rules this week, PC World nailed the problem with its headline: “The decision will be challenged, and the case could drag on for years.”

Regardless of how the court ruled, net neutrality was destined to play out in courtrooms for the next decade as policymakers, technologists and consumers grapple with how to ensure open access to the internet while not crushing innovation and discouraging investment that created the Web in the first place.

Today the battle is largely between ISPs and edge providers. But as we’ve seen with buyers’ remorse statements from companies such as Netflix and Cloudflare, as well as EFF’s John Perry Barlow, in the future these legal battles may become more muddled as tech titans realize that they could be captured by the rules designed to keep the internet accessible to all.

These battles would test the patience of Bill Murray’s character in “Groundhog Day,” which is why there is only one entity that can settle the issue once and for all: Congress. Critics of the FCC contend the agency overstepped its bounds and applied 20th Century rules to innovative and rapidly changing technologies. At the same time, everyone wants to ensure that the internet continues to remain open and that we don’t create fast lanes, ban blocking and enhance transparency.

Only Congress can solve this problem by rewriting the laws that the FCC uses to base its rules. However well meaning the FCC was with its approach, two obvious negatives exist. The first is that the uncertainty over a decade-long legal fight leads tech companies – both those that supply the pipes and those who rely upon them – to play wait and see on new investments or innovations. That’s bad news for consumers and really bad news for an economy that needs a tech jolt.

The second is that we risk accepting that the Web deserves to be treated no differently than our water or electrical utilities – plodding and innovation-free, devoid of competition. That harms consumers and innovators alike due to a lack competition, choice and investment.

Both the Senate and House have already started nibbling around the edges of legislation with the House voting to exempt small ISPs from certain rules, followed by a Senate subcommittee following suit. Sens. John Thune and Bill Nelson continue to work toward a legislative solution as well.

But it’s imperative we have a more concrete and long-term solution that addresses how we keep the internet flourishing without the doomsday scenarios of lawyers creating an innovation limbo or FCC mission creep that extends Title II to more companies. Complicating matters is the presidential election, which will likely usher in new leadership at the FCC. New leadership could lead to a new interpretation of the rules, more (or less) forbearance and……ongoing uncertainty.

The antidote to uncertainty is Congressional action. We all know nothing will happen this summer and fall, but this must be a priority for a new president and new Congress. If it is not, like Bill Murray’s character, we will wake up every day hoping for a resolution, but realizing we remain frozen in time. That’s not how the internet works, and not what’s good for the future of our economy.

Mike Montgomery is executive director of CALinnovates, a California-based technology advocacy coalition.

This piece was originally published in The Hill.

Mike Montgomery, CALinnovates: Verizon Sees The Light On Net Neutrality But It’s Too Little Too Late

By Mike Montgomery

Verizon’s most recent statement on net neutrality is really the height of hypocrisy. To be clear, I completely agree with the no blocking and no throttling principles outlined in the post. Yet their sudden enthusiasm to ban zero rating services and grant the FCC power to chill innovation through antiquated regulation will ultimately harm broadband investment and consumer access to modern 21st century Internet-based services and applications. It’s curious that Verizon has recently found religion on this single-most divisive and long-lasting tech public policy issue of this century.

For the past six years my organization, CALinnovates, has been pushing for a third way on net neutrality: laws that support an open, free Internet but are affirmatively enshrined into law by Congress instead of mandated by the FCC and are subject to change every 4–8 years. Unfortunately, we’re currently in legal no-man’s land, and, as we predicted, the rules are now going through the legal meat grinder as we are essentially legislating through litigation.

As we predicted, the FCC has set in motion a process where tech policy is set through litigation, rather than through collaborative and publicly vetted legislation. This creates many problems. Waiting means incredible uncertainty for anyone building a business that might be affected by changing net neutrality rules (in other words, everyone building a business on the Internet).

No one knows what the courts will decide. The legal process is, by definition, uncertain. And we’re in the middle of a heated presidential race.

The next president will appoint a new FCC Chairman and there’s no guarantee that he or she will see the issue through the same lens as Chairman Wheeler, nor are we guaranteed the same political makeup of the Commission, which is currently a 3–2 Democratic majority. In short, the FCC’s decision last February to regulate the Internet like a utility didn’t cement a new open Internet framework, it just extended the period of confusion and uncertainty that may benefit lobbyists and lawyers while harming consumers, entrepreneurs, and everyone else.

With its splashy statement Verizon shows that it finally understands this, but here’s the truth: Verizon is a big part of the reason we’re in this mess in the first place.

In 2010, the FCC adopted common sense rules dealing with central tenets of net neutrality. The rules created transparency and prohibited traffic blocking without resorting to Title II. CALinnovates supported this move at the time and even praised the FCC for taking the high road.

Verizon did not agree with our position on this. Tone deaf, the phone company employed some complicated legal maneuvers to stop the FCC from implementing the new rules.

Their plan worked (before it totally backfired). Verizon won and the court sent the rules back to the FCC to be reevaluated. Put between a rock and a hard place (and with an army of Internet users calling for blood) the FCC took the easy road and simply decided that the Internet is a utility that should be regulated just like your sewer, water and electricity providers.

We all know how much innovation flows from these entities — none. And there’s a real chance that under Title II, we’re looking at a similar future for the Internet, the source of nearly all technological innovation in today’s digital age.

Verizon created this mess and now they’re trying to claim a degree of moral superiority in the net neutrality battle. In its blog post, Verizon said, “We can’t predict how the court will rule. But if history is any guide, we can expect more conflict and more uncertainty over the scope of the FCC’s authority and whether the current statute provides the tools the FCC needs to adopt these rules. The only way to avoid this depressing redux is for Congress to act.” Yes, Verizon, we can hear your now — but that’s what we’ve been saying all along while you were sicking your high priced litigators on the FCC in an attempt to overturn net neutrality rules that led to a broken policy debate where only one of the extreme positions could win.

Verizon should be apologizing to the American public for their reckless policy decision, rather than pretending they were here all along.

It’s hard not to feel a certain sense of bewilderment at Verizon’s floundering statement. If the company doesn’t like the way things have turned out it has only itself to blame. Unfortunately, it appears that only the broadband economy and innovation ecosystem will suffer from Verizon’s ability to compound one set of errors with another.

Mike Montgomery is the Executive Director at CALinnovates.