FCC cannot automatically block state net neutrality laws, court rules

Net neutrality is the principle that all content on the internet is treated equally. Regulations introduced under President Obama incorporated this principle into law, forbidding internet service providers (ISPs) from speeding up, slowing down or blocking content. This policy followed instances of ISPs attempting to deprioritise or block content produced by rivals; many telecommunications giants also own major content providers.

In December 2017, the FCC – chaired by former Verizon attorney Ajit Pai – voted three-to-two to scrap net neutrality regulations previously introduced by the Obama administration, following a highly divisive consultation period. The order went into effect in 2018, allowing ISPs to tamper with the speed of internet traffic as long as they disclosed it.

Soon after the vote, state lawmakers in New York, Montana, Nebraska, Vermont and Oregon began the process of drawing up their own net neutrality regulations within the parameters set by the FCC. However, in September 2018, Californian lawmakers – who had been working since 2015 to implement the state's own stricter net neutrality regulations – enshrined in law the state's new rules. Almost immediately, the Department of Justice and lobbying groups representing ISPs took legal action against California in an attempt to halt the law, insisting that only the FCC has the authority to establish rules for ISPs.

Meanwhile, Mozilla led a group of tech companies, public representatives and campaign groups taking legal action against the FCC’s repeal of net neutrality.

Now, a three-judge panel from the DC Circuit Court of Appeals has ruled that the FCC’s repeal of net neutrality regulations was permissible, but also ruled that the FCC could not pre-emptively prevent state lawmakers from introducing their own net neutrality regulations. These regulations must instead be challenged on a case-by-case basis.

While this ruling could give other state lawmakers the green light to draft their own net neutrality regulations beyond the parameters set by the FCC, it could have a major impact beyond the realm of net neutrality. Most significantly, the ruling suggests that the federal government does not have automatic precedence over state government when it comes to legislation relating to the behaviour of private companies.

The court also accepted Mozilla’s argument that blocking or slowing down broadband traffic could prove a threat to public safety, such as in the case of Californian firefighters having their Verizon devices slowed down while fighting wildfires in August 2018. This ruling will require the FCC to analyse the public safety implications of ISPs having the right to tamper with traffic speeds.

Despite the FCC’s net neutrality repeal being declared lawful, Judge Patricia Millett described it as “unhinged from the realities of modern broadband service”.

Following the ruling, Chairman Pai wrote on Twitter: “Today’s DC Circuit decision is a big victory for consumers! The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the internet. A free and open internet is what we have today. A free and open internet is what we’ll continue to have going forward.”

FCC Commissioner Jessica Rosenworcel, who voted against the net neutrality repeal, commented that the rollback was “on the wrong side of the American people, the wrong side of history” and that “today we learned in critical respects it was also on the wrong side of the law.”

Mozilla’s chief legal officer Amy Keating said that she was encouraged by the result and that the group would consider its next steps in challenging the repeal.