D.C. Circuit Largely Upholds FCC Net Neutrality Repeal
October 7, 2019
On October 1, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) affirmed the majority of the Federal Communications Commission’s (“FCC” or “Commission”) 2017 decision repealing Obama-era net neutrality rules that prohibited internet service providers (“ISPs”) from blocking or slowing Internet access. See Mozilla Corp. v. FCC, No. 18-1051 (D.C. Cir. Oct. 1, 2019). The D.C. Circuit, however, struck down a provision that preempted states from passing their own net neutrality rules. The Court ultimately remanded the repeal order to the FCC, directing the Commission to revise the order to consider issues such as public safety effects, broadband subsidies for low-income users, and pole attachment regulation.
By way of background, in 2015, the FCC adopted net neutrality regulations banning ISPs from blocking or slowing Internet traffic and prohibiting them from offering “fast lanes” or “paid prioritization” to companies that paid a fee to reach consumers quicker than competitors. To ensure that it had the legal authority to enforce its own net neutrality rules, the FCC also reclassified broadband Internet access service as a “telecommunications service,” similar to that provided by the traditional telephone network. Thereafter, in 2017 the FCC, led by its new Chairman Ajit Pai, issued a notice of proposed rulemaking seeking to repeal the net neutrality rules. Mozilla and other Internet companies opposed the ensuing rulemaking proceeding of FCC’s rollback arguing that the FCC had not justified its decision for repealing the rules and calling the FCC’s move “arbitrary” and “capricious.” The internet companies also argued that the FCC “fundamentally mischaracterize[d] how internet access works.” Twenty-two state attorneys general joined the internet companies’ suit against the FCC, arguing that the Commission overstepped its authority when it preempted states from passing their own net neutrality regulations to protect consumers, legislation which several states had already passed or are considering passing.
In upholding the FCC’s 2017 repeal of the net neutrality regulations, the D.C. Circuit characterized the majority of the objections to the FCC’s order as “unconvincing for the most part.” With respect to the Court’s decision to strike the FCC’s preemption of states’ legislative efforts regarding net neutrality, the Court agreed with the states that the move “exceed[ed] the Commission’s statutory authority.” The Court, however, left open the possibility of the FCC eventually becoming empowered to challenge state neutrality laws: “If the Commission can explain how a state practice actually undermines the 2018 [net neutrality repeal] Order, then it can invoke conflict preemption. If it cannot make that showing, then presumably the two regulations can co-exist.” It is likely, therefore, that legal challenges around net neutrality will continue in the coming years.
If you would like additional information regarding any of the matters discussed in the D.C. Circuit’s decision, including those issues that were remanded to the FCC for further consideration, or if you have questions regarding states’ ongoing net neutrality legislative efforts, please contact Charles Zdebski at 202.659.6605 (czdebski@eckertseamans.com).
This Telecommunications Update is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.
© Eckert Seamans Cherin & Mellott, LLC, 2019, all rights reserved.