FCC (Mostly) Survives Net Neutrality Appeal

The Federal Communications Commission scored a victory, albeit an incomplete one, before the D.C. Circuit Court of Appeals in a wide-ranging opinion issued Tuesday.  The per curiam (meaning delivered by the court, not an individual judge) opinion upholds most of the FCC’s 2017 repeal of net neutrality rules introduced in 2015.  However, the court vacated a portion of the order which prevented states from legislating their own net neutrality protections. 

The case, captioned Mozilla v. FCC, et al. arises from the implementation of net neutrality rules.  Net neutrality is the principle that internet service providers should treat all web traffic easily; blocking, throttling, and the creation of “fast lanes” for certain content would be prohibited.  In 2015, under Chairman Tom Wheeler the FCC reclassified broadband internet as a “telecommunications service” subject to additional regulation. Under Chairman Ajit Pai, the Commission reversed its earlier decision, prompting a flurry of litigation. 

In its opinion, the court held that the Commission was entitled to deference under the Chevron test, which governs when a court should allow for deference to an agency’s discretion. However, the Commission’s action did not emerge unscathed.  The court remanded portions of the order for the Commission to provide additional justification as to the rule change’s effect on public safety.  These concerns became front and center after Verizon throttled first responders’ data connection during the California wildfires. The court also remanded provisions relating to pole attachment regulations.  Utility pole regulations clear many infrastructural barriers to competition among telecommunications providers.  Finally, the court asked for more justification as to the rule changes’ effects on Lifeline, a program which provides discounts to low-cost cellular and broadband access for those in need. 

The court vacated the Commission’s attempt to preempt all state lawmaking and regulation that would go further than its own rules, stating that there was no legal authority for it to do so.  While the Commission can challenge state action on a case-by-case basis, it must do so in court.  This paves the way for the implementation of California’s Internet Consumer Protection and Net Neutrality Act, and any other state legislation that passes. 

Petitioner Mozilla (represented by Steptoe & Johnson) was joined in litigation by dozens of intervenors and amicus curiae, on both sides of the case.  Stakeholders included private companies, local governments, members of Congress, individuals, and advocacy groups representing industry, education, and privacy interests.  Dozens of major law firms and law school clinics participated in the litigation.

FCC Chairman Ajit Pai released a statement on Twitter, writing “Today’s D.C. Circuit decision is a big victory for consumers… A free and open Internet is what we have today. A free and open Internet is what we’ll continue to have going forward.” Meanwhile, Mozilla tweeted that “we’re glad to see states empowered to protect people. We’re not done fighting, though! We all must have access to an open internet.”

Last year, the Supreme Court declined certiorari in USTelecom v. FCC, which concerned the 2015 net neutrality rules which had been repealed by the time the case reached the Supreme Court.