• The DC Circuit Court recently upheld the FCC’s move to repeal Obama-era net neutrality rules.
  • The court’s ruling allows both sides to claim some measure of victory.
  • Expect broadband providers to renew their push for Congress to pass a nationally codified law  rather than deal with a patchwork of state regulations.

FCC prevails in court battle

The future of broadband in the United States became a little bit clearer last month after the DC Circuit issued its decision in Mozilla v. FCC. Simply put, the court upheld the FCC’s move to repeal Obama-era net neutrality rules by reclassifying broadband access as an information service rather than as a telecommunications service. 

Common-carrier laws, which provided the legal basis for net neutrality, regulate telecommunications services. Classifying broadband as an information service instead effectively deregulated the industry.

The appeal to this declassification was filed by a coalition of state attorneys general, consumer advocacy groups, and tech companies like Mozilla and Vimeo.

“This is perhaps unsurprising,” wrote Daniel Lyons, a Visiting Fellow at the American Enterprise Institute. “The Supreme Court long ago held that the FCC has authority to determine how best to categorize broadband service, and the countless rounds of litigation since have really only reinforced that point.”

The court’s ruling allows both sides to claim some measure of victory. 

Despite the fact that the ruling left the door open to states passing their own net neutrality laws, FCC Chairman Ajit Pai hailed the court’s decision, calling it “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,” Pai said. “The court also upheld our robust transparency rule so that consumers can be fully informed about their online options.”

“Our fight to preserve net neutrality as a fundamental digital right is far from over,” countered a statement from Amy Keating, chief legal officer at Mozilla Corp., maker of the Firefox web browser and one of the plaintiffs in the case. “We are encouraged to see the court free states to enact net neutrality rules that protect consumers.”

The debate goes to the states — and Congress

Mozilla v. FCC marks the ninth net neutrality-related lawsuit to date. As the debate rages on and both sides look to future court battles to further their positions, the only clear-cut winner in this series of lawsuits is the litigators themselves.

“This ambiguous ruling is a gift that will keep on giving to expert law firms, which can book another few years of revenue from tech and telecom companies,” wrote Rosyln Layton, a Visiting Scholar at the American Enterprise Institute. Layton added wryly that such funds could have instead been spent on things like “new broadband networks, information technology equipment for the poor, training the elderly to get online, or other socially beneficial endeavors to close the digital divide.”

While net neutrality advocates claimed a silver lining in the court’s ruling, Lyons predicts that most state efforts to pass net neutrality laws like those the FCC just repealed will ultimately be preempted. According to the Constitution, when a state regulation conflicts with federal rules, the state must yield. As the court’s opinion stated: “If the Commission can explain how a state practice actually undermines the 2018 Order, then it can invoke conflict preemption.” This means that preemption will be assessed on a case-by-case basis. However, given the FCC’s wide spectrum of regulatory options for broadband authorized under the Communications Act, Lyons argues that states will have a hard time making their case against a presumption ruling.

That said, there is one governing body that unquestionably has the authority to change the FCC’s regulatory power over broadband: the U.S. Congress.

“The future of an open and fair internet is now in the hands of state governments and Congress. The more states act, the greater imperative companies will feel to accept meaningful action from Congress,” wrote Tom Wheeler, a former FCC Chairman, in the New York Times.

Companies that opposed the net neutrality rules implemented under the Obama administration’s FCC could find themselves in an interesting position next year as a new state law in California that essentially copied the Obama-era rules is poised to go into effect (though it first faces the hurdle of a lawsuit from the Department of Justice). Expect broadband providers to renew their push for Congress to pass a nationally codified law. They would rather face that than deal with the headache of a patchwork of state regulations.

“Congress must end this regulatory rinse-and-repeat cycle by passing a strong national framework that applies to all companies, maintains our dynamic and open internet, and sustains our global digital leadership for the next generation and beyond,” said Jonathan Spalter, CEO of US Telecom, in a statement.

Until Congress intervenes with legislation establishing consistent, long-term rules for ISPs, internet companies, and consumers, this juggling act of litigation, FCC regulations, state legislation, and industry standards is sure to continue. With Congress’ remaining days in session this year dwindling and the prospect of impeachment consuming Washington, Americans are unlikely to see legislation until next year — and probably not until after the 2020 election.

Grassroots Pulse covers public policy and political issues aimed at engaging highly-active policy makers, donors, and grassroots leaders at the forefront of the political process in America today.

Image Credit:  “Ajit Pai” by Gage Skidmore is licensed under CC BY-SA 2.0.