FCC Improperly Blocked States From Passing Net Neutrality Laws, Appeals Court Rules

Federal Communications Commission Chairman Ajit Pai drinks from an over-sized novelty coffee cup during a commission meeting on December 14, 2017, in Washington, DC.
Photo: Alex Wong / Getty

A federal appeals court on Tuesday largely upheld the Federal Communications Commission’s decision to roll back nationwide net-neutrality protections in a blow to supporters of the Obama-era policy. But not everything in the ruling went in the FCC’s favor.

Consumer advocacy groups, including Mozilla, Free Press, Public Knowledge, and the National Hispanic Media Coalition, as well 22 states, sued the FCC last year over the repeal, which nullified rules that outlawed any blocking or throttling of internet traffic by mobile and fixed broadband providers.

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The D.C. Circuit refused to vacate the FCC’s repeal except for one portion: The agency had failed, it said, to demonstrate proper legal authority to ban state governments from passing their own net neutrality rules. The agency had attempted to do so through a “preemption directive” included in the text of its 2018 Restoring Internet Freedom Order, but hadn’t properly explained how state laws would undermine it.

“The Commission ignored binding precedent by failing to ground its sweeping Preemption Directive—which goes far beyond conflict preemption—in a lawful source of statutory authority. That failure is fatal,” the ruling states. It goes on to say: “If the Commission can explain how a state practice actually undermines the 2018 Order, then it can invoke conflict preemption.”

The court, which previously upheld the 2015 Open Internet Order that enshrined net neutrality into law, also remanded the FCC over other multiple other issues, including the fact that it failed to “examine the implications of its decision for public safety.

“Today’s decision is a victory for consumers, broadband deployment, and the free and open Internet,” FCC Chairman Ajit Pai said in a statement. “The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior Administration. The court also upheld our robust transparency rule so that consumers can be fully informed about their online options.”

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Mozilla’s chief legal officer, Amy Keating, said the company was considering its next steps in the litigation. “Our fight to preserve net neutrality as a fundamental right is far from other,” she said.

Net neutrality groups involved in the case said they’d taken solace in the fact that the mixed ruling allowed states to move forward with their own protections. Last year, California passed a net neutrality law that mirrors the consumer protections imposed under the Open Internet Order. The U.S. Justice Department filed a lawsuit challenging the law immediately after Governor Gavin Newsom signed it.

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“The DC Circuit Court has spoken very clearly—the states are now free to do what the FCC will not—assert authority over the broadband market and protect an open Internet,” added Gigi Sohn, a former FCC official. “Broadband providers will inevitably complain about having to comply with a so-called ‘patchwork’ of different state laws, but that is of their own making.”

Evan Greer, deputy director for Fight for the Future, said the ruling would serve as an invitation to the major internet carriers to press for a new law that will preempt any state-level net neutrality legislation. “We can’t let that happen,” she said. “The Internet must come together once more to beat back corruption and defend our online freedom.”

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Rep. Greg Walden, ranking Republican on the House Energy and Commerce Committee, signaled that he was prepared to support a bill that would put an end to the state laws while keeping the repeal in place. “A patchwork of state regulations will hamper innovation, creating confusion and compliance nightmares,” he said.

Democratic Sen. Edward Markey, meanwhile, said it was “imperative” that Congress pass the Save the Internet Act, legislation that would effectively overturn the repeal and reinstate the Obama-era rules. House Democrats passed the bill in April with the aid of a lone Republican. Senate Majority Leader Mitch McConnell has stymied every effort to bring its companion bill to a vote in the Senate.

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“When the FCC rolled back net neutrality it was on the wrong side of the American people and the wrong side of history. Today’s court decision shows that the agency also got it wrong on the law,” said FCC Commissioner Jessica Rosenworcel, who voted against the repeal.

“As the FCC revisits its policies in light of the court’s directives, I hope it has the courage to run an open and fair process,” she added.

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Updated, 3:30pm: We’ve added additional comments and context.

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Dell Cameron

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