FCC, States Could Clash Over Net Neutrality

Net neutrality

By Josh Long

A federal appeals court this month largely upheld a 2018 decision by the Federal Communications Commission to dismantle ‘net neutrality’ regulations issued under the Obama administration.

But the FCC exceeded its authority by attempting to preempt states from imposing more stringent requirements than the 2018 rules, according to a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).

The FCC “has not shown legal authority to issue its preemption directive, which would have barred states from imposing any rule or requirement that the Commission ‘repealed or decided to refrain from imposing’ in the order or that is ‘more stringent’ than the order,” the D.C. Circuit held.

The Oct. 1 ruling likely set ups a potential showdown for more court clashes over states’ regulation of the internet in a manner that would arguably conflict with – and undermine – a national framework.

“The court’s decision leaves states with a clear path forward to enact state net neutrality laws to protect internet users and provide certainty for participants in the digital economy,” said John Bergmayer, legal director at Public Knowledge, a public interest group in Washington, D.C. “States should move expeditiously to protect consumers where the FCC has refused to do so.”

A bill in California – signed into law in 2018 – restored net neutrality rules aimed to protect consumers that the FCC disseminated in 2015. In filing a 2018 lawsuit against the state of California, the U.S. Department of Justice argued the state was attempting to impose onerous state regulations, and in the words of then-Attorney General Jeff Sessions, “frustrate federal policy.”

California last year agreed to put its law on hold, the Los Angeles Times reported, pending a decision by the D.C. Circuit on whether the FCC acted lawfully when it ended its prior internet rules.

The fate of California’s law remains uncertain. While a spokesperson for the office of California Attorney General Xavier Becerra said the law “appears to be on pretty solid ground,” Doug Brake with the Information Technology and Innovation Foundation – a think tank in Washington, D.C. – predicted the law and a similar one in Vermont “will fall pretty quickly,” the San Francisco Chronicle reported.

In a separate statement, Brake suggested the recent appeals court decision paves the way for states to promulgate their own Internet rules, “creating more confusion and potential conflict.”

“Broadband networks – the fundamental communications platform of our day – deserve uniform, nationwide, expert agency oversight at the FCC,” he added.

But states haven’t been pleased with the FCC’s policies. In 2018, nearly two dozen state attorneys general – including New York – sued to block the FCC’s repeal of Internet regulations adopted in 2015 during the Obama administration.

“We stand committed to protecting our residents by treating all internet traffic equally, defending access, innovation and competition,” New York Attorney General Letitia James said, commenting on the D.C. Circuit’s ruling. “It’s unfortunate that the court has sanctioned the federal government’s abandonment of those principles.”

The state of Vermont in 2018 adopted a net neutrality law that was challenged in court and officials have yet to enforce, but the D.C. Circuit’s decision isn’t expected to …

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