In a ruling Tuesday, a federal appeals court upheld the Federal Communications Commission’s controversial repeal of Obama-era net neutrality protections. But the substance of that ruling leaves the door open for states and local governments to write their own regulations.
In California, which adopted such regulations last year only to freeze them in a deal with the federal government, lawmakers, officials and advocates celebrated the ruling as a win. Even though the ruling means there are no federal regulations in place to prevent internet providers such as Comcast and AT&T from blocking or slowing access to websites or charging for higher-quality service, it removes a major roadblock for states in defending their laws in court, experts said.
“Overall, the ruling was very bad because it upheld the FCC’s repeal,” California state Sen. Scott Wiener (D-San Francisco) said. “The silver lining is that the court ruled the FCC does not have the power to prohibit states from enacting our own net neutrality protections.”
The new ruling is by no means the final word on state legislation, however. California enacted its own net neutrality rules last year, but that law, championed by Wiener, has been in limbo while the challenge to the FCC’s decision is litigated. California and other states still have more legal battles to win before they may be able to establish secure net neutrality protections.
When it repealed existing federal protections in 2017, the FCC argued it did not have the authority to regulate broadband providers. The appeals court pointed to that claim in ruling the agency lacks the authority to block states from putting in place their own rules.
The court also pointed out that the FCC’s decision raises questions about the government’s ability to offer programs such as Lifeline, which provides low-income people with subsidies for broadband access. Additionally, the court instructed the FCC to make sure the repeal does not adversely affect public safety agencies, drawing on testimony from firefighters in Santa Clara who said their service was throttled during the Mendocino Complex fire because of a billing issue.
Under Chairman Ajit Pai, who was appointed to his position by President Trump, the FCC repealed net neutrality rules in a 3-2 vote along party lines. Pai argued that regulations put too many restrictions on companies, deterring them from investing in speedy broadband access nationwide.
Backlash was swift, with tech companies, public interest groups and more than 20 states combining forces to mount a legal challenge to the decision.
“This is about whether we’re able to have a free and open internet — the concept that when you go on the internet, you should be able to go to whatever website you want to go to, without having big corporations decide where you can go,” Wiener said.
In September 2018, California enacted Senate Bill 822, designed to replace the Obama-era rules the FCC had rescinded. At least eight other states, — Hawaii, Montana, New York, New Jersey, Washington, Rhode Island, Montana, and Vermont — have passed their own net neutrality legislation or issued executive orders banning state agencies from doing business with internet providers that don’t uphold net neutrality. California’s law contains the most comprehensive protections of any state.
Just a few hours after then-Gov. Jerry Brown signed the bill into law, the U.S. Department of Justice filed a lawsuit to block it. California Atty. Gen. Xavier Becerra then agreed to a deal with the department to delay enforcing the law until the federal lawsuit over net neutrality was resolved.
Tuesday’s court ruling might be appealed, though experts said it’s too early to know for sure. Once the appeals process — which could take at least another year — is completed, California would be free to enforce its law. A spokeswoman for Becerra’s office said the ruling puts the state on “solid ground” to defend that law in court.
Eric Null, senior policy counsel at New America’s Open Technology Institute — one of the groups that challenged the FCC’s repeal — said the FCC or Justice Department is likely to challenge state laws on the basis that they conflict with federal laws. But after Tuesday’s ruling it may be much harder for the FCC to make that case, since there are nearly no rules left at the federal level except part of the FCC decision requiring that broadband providers be transparent.
“We think it will be an uphill battle for those battling state neutrality laws,” Null said.
Others, however, are skeptical state laws will stand up in court. Gus Hurwitz, a professor of law at the University of Nebraska and co-director of its Space, Cyber, and Telecommunications Law program, said administrations have been “ping-ponging” back and forth over net neutrality for years, and the best path forward is for Congress to enact legislation to put the question to rest, though that’s unlikely to happen, he added.
He said there have been no patterns of broadband service providers engaging in problematic behavior, such as blocking or throttling content, and he said it’s unlikely that they would behave badly in the future even without regulations, since backlash would be a “political nightmare” to deal with.
But Null said broadband providers have been on good behavior while rules have been up in the air because of the lawsuit, and that without federal regulations there is nothing keeping them in check.
“We think that having strong rules in place is better than relying on internet service providers to do what’s in the best interest of customers,” Null said.
Ryan Singel, a fellow at the Center for Internet and Society at Stanford, said he is not sure when these arguments and the mountain of litigation ahead for states will be resolved, but he believes “We will get net neutrality rules somehow, someday.”
“It’s just a question of when, and how.”