Court Upholds Net Neutrality Repeal, But Rejects FCC's Decision To Block All State Laws

A three-judge panel of the D.C. Circuit Court of Appeals on Tuesday partially upheld the Federal Communications Commission's decision to revoke the Obama-era net neutrality rules, which prohibited broadband providers from blocking or throttling online traffic and charging companies higher fees for prioritized delivery.

But the appellate panel vacated the portion of the order that blocked states from passing or enforcing their own broadband laws. The judges concluded that the FCC “lacked the legal authority to categorically abolish all fifty states’ statutorily conferred authority to regulate intrastate communications.”

At the same time, the opinion leaves open the possibility that the FCC could override state laws on a case-by-case basis.

The decision stemmed from a challenge to the FCC's December 2017 vote to repeal a set of open internet rules that were passed just two years earlier.

FCC Commissioner Ajit Pai, who shepherded the repeal, says the Obama-era rules were “heavy handed” and depressed investment.

Pai called Tuesday's decision “a victory for consumers, broadband deployment, and the free and open internet.”

Net neutrality proponents say the rules were necessary to prevent broadband providers from limiting consumers' ability to access streaming video, search engines and other online services and content.

A coalition of tech companies, consumer advocacy groups, state attorneys general and city officials asked the D.C. Circuit Court of Appeals to vacate the December order and reinstate the 2015 rules. Among other arguments, the attorneys general and city officials said the FCC didn't take into account that the repeal could harm public safety. They pointed to Verizon's decision to slow down service to firefighters battling blazes in California this summer.

Even though the appellate judges rejected the request to vacate the order, they sent the matter back to the FCC with instructions to examine the implications of the repeal on public safety, the Lifeline program (which subsidizes broadband) and regulations regarding utility poles.

FCC Commissioner Jessica Rosenworcel, who opposed the rollback, highlighted the court's decision to return the matter to the agency. 

“The court sends back to the @FCC much of the mess it made with NetNeutrality,” she tweeted. “The court has given us another chance to protect what matters most: an open internet, public safety, affordable service, and broadband infrastructure.

After the FCC repealed the 2015 rules, lawmakers in several states -- including California, Vermont and Washington -- passed their own measures.

California's law prohibits broadband providers operating in the state from blocking or throttling traffic and from charging companies higher fees for prioritized delivery. The measure in Vermont prohibits broadband access providers that contract with state agencies from violating the Obama-era net neutrality rules.

Broadband providers are suing to invalidate the laws in California and Vermont. The cases were put on hold to await the D.C. Circuit Court's decision on the validity of the FCC's attempt to block state laws.

Net neutrality proponent Sen. Ed Markey (D-Massachusetts), who recently introduced the Save the Internet Act, which would restore the Obama-era rules, responded to the court ruling by urging Congress to pass act. Earlier this year, the House passed a companion to Markey's bill, but Senate Majority Leader Mitch McConnell (R-Kentucky) has so far refused to allow the Senate to vote on the bill, which he declared “dead on arrival.”

“Today’s court opinion doesn’t reflect the clear reality that Americans rely on the internet the way they rely on electricity or telephone service,” Markey stated Tuesday. “It is more imperative than ever that Congress enacts my ‘Save the Internet Act.'”

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