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DC Circuit court largely upholds net neutrality repeal, but FCC can’t preempt net neutrality state laws

FCC commissioners react to ruling that largely upholds the repeal, but strikes down preemption of net neutrality rules by states and cities

A federal appeals court ruling on the Federal Communications Commission controversial repeal of net neutrality regulations for broadband providers was mostly a win for the repeal, but it opens the door for states to continue to fight for their own net neutrality regulations and requires the FCC to reexamine three areas of its 2018 order which changed the classification of broadband services.

The D.C. Circuit court upheld the commission’s overall repeal of net neutrality, also known as Title 2 regulation, through the reclassification of fixed and mobile broadband providers as “information services” and “private mobile services” rather than “telecommunications services.” The classification difference allows network operators to distinguish among traffic types and prioritize, throttle or block traffic types or specific content, such as web sites. A bevy of states, tech companies and consumer groups sued the FCC over the action, but the circuit court ruled largely in favor of the federal agency.

But the court struck down the FCC’s attempt to prevent local jurisdictions from creating their own, pro-net neutrality requirements. Some states, including California, New York, Montana, New Jersey, Washington, Rhode Island, Montana, Hawaii and Vermont, responded to the net neutrality repeal by passing bills or issuing executive orders which put in place their own versions of the regulation that the FCC repealed.

In the ruling, the circuit court said that the FCC did not show its authority for preemption, which “would have barred states from imposing any rule or requirement that the Commission “repealed or decided to refrain from imposing” in the order or that is “more stringent” than the order.” Whether the state-level actions will hold up legally remains to be seen, but it seems they will get their day in court — although the appeals court decision could be appealed as well.

The circuit court also directed the FCC to re-examine its order repealing net neutrality in three areas, saying that the agency “failed to examine the implications of its decisions for public safety,” didn’t sufficiently explain what the repeal would mean for pole attachment regulation; and “did not adequately address … concerns about the effects of broadband reclassification on the Lifeline Program.”

FCC Chairman Ajit Pai nonetheless called the decision a “victory for consumers, broadband deployment, and the free and open Internet. The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior Administration. … We look forward to addressing on remand the narrow issues that the court identified.”

Fellow Republican Commissioner Brendan Carr called the decision “a big win for a free and open Internet and for U.S. leadership in 5G. The Internet has flourished under the light touch approach to regulation that the FCC restored in 2017.”

Republican Commissioner Michael O’Rielly was a bit more reserved in his assessment, saying that while he was still digesting the details of the decision, it was “heartening to see a court get most of the decision correct” in affirming the FCC’s authority on the decision, which he said was “grounded in sound policy as it avoids the hubristic posture of a central-planning, micro-managing government, which harms innovation and reduces the benefits accruing to American consumers that are made possible by a light-touch approach.

“At the same time, vacating the preemption provisions seems to misread precedent and ignores the technology’s structure, which cannot be segmented into intrastate portions. Inevitably, this will lead to Commission case-by-case preemption efforts and more litigation,” O’Rielly added.

The two Democratic members of the FCC voiced their support for the striking down of the preemption directive.

Commissioner Jessica Rosenworcel said that the agency “was on the wrong side of the American people and the wrong side of history” in repealing net neutrality. “From small towns to big cities, from state houses to governors’ executive actions, states and localities have been stepping in because the FCC shirked its duties,” she added. She said that as the FCC revisits the issues of public safety, Lifeline and infrastructure in relation to the court, “I hope it has the courage to run an open and fair process.”

Commissioner Geoffrey Starks said that the ruling “breathes new life into the fight for an open internet. It confirms that states can continue to step into the void left by this FCC. To that end, it is a validation of those states that have already sought to protect consumers, and a challenge to those that haven’t yet acted to think hard about how to protect their citizens.”

ABOUT AUTHOR

Kelly Hill
Kelly Hill
Kelly reports on network test and measurement, as well as the use of big data and analytics. She first covered the wireless industry for RCR Wireless News in 2005, focusing on carriers and mobile virtual network operators, then took a few years’ hiatus and returned to RCR Wireless News to write about heterogeneous networks and network infrastructure. Kelly is an Ohio native with a masters degree in journalism from the University of California, Berkeley, where she focused on science writing and multimedia. She has written for the San Francisco Chronicle, The Oregonian and The Canton Repository. Follow her on Twitter: @khillrcr

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