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Net Neutrality

D.C. Circuit Court Upholds FCC Chairman Ajit Pai’s Repeal of Net Neutrality, But Allows States to Fill the Void

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Photo of Ajit Pai in February 2018 by Gage Skidmore used with permission

WASHINGTON, October 1, 2019 — The Federal Communications Commission’s repeal of Obama-era network neutrality rules will remain, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on Tuesday.

However, in a bit of a split decision, the court said that the agency did not have authority to preemptively ban states from passing their own versions of net neutrality legislation.

The panel largely rejected a challenge to new rules which reclassify broadband internet as an information service, rather than a common carrier akin to telephone service.

The ruling appeared to put an end to efforts by public interest advocacy groups and some internet companies to overturn the reclassification of broadband internet service.

In December 2017, FCC Chairman Ajit Pai led the Republican commissioners to overturn the agency’s February 2015 decision to prohibit broadband providers from blocking or throttling particularl types of internet traffic.

“We hold that classifying broadband Internet access as an “information service” based on the functionalities of DNS and caching is “‘a reasonable policy choice for the [FCC] to make,’” the court wrote in a unanimous opinion. The decision relied heavily on case law – so-called Chevron deference after a Supreme Court case by that name from the 1980s — requiring courts to defer to agencies’ interpretations of ambiguous statutes.

The plaintiffs’ objections to the reclassification, the court wrote, were “unconvincing for the most part.”

In leaving room for states to enact their own net neutrality laws — by finding that the agency lacked the authority to bar states from enacting rules more stringent than the FCC’s requirements — some aspects of the decision cheered advocates of net neutrality. The court also required the FCC to more fully consider the needs of public safety users.

In a statement, TechFreedom President Berin Szoka applauded the court’s decision, but noted that it leaves room for a future Democratic-majority FCC to reinstate the Obama-era rules and shift the long-running battle over network neutrality to state legislatures and case-by-case court battles.

“Today’s decision vindicates the RIFO, but Chevron deference to the Republican FCC’s interpretation will likely be tomorrow’s Chevron deference to the next Democratic FCC’s interpretation,” Szoka said. “So this issue will remain a political football for the foreseeable future, unless and until Congress finally writes into statute the open Internet principles that virtually all parties have agreed on since 2004.”

Internet Innovation Alliance Co-Chairs Rick Boucher, Bruce Mehlman, and Kim Keenan also lauded the ruling, which they said “deserves applause from everyone who wants to see an expansion of innovation, competition and investment in the internet ecosystem.”

“But ruling that the FCC can’t block state laws and thus allowing rules that differ among all 50 states could spell disaster for advancement of the internet, as web services are offered on a national basis, and many would be disrupted by a multiplicity of diverse and contradictory state net neutrality requirements,” they added.

“Unless Congress codifies nationwide open internet rules, including the designation of broadband as an information service, we will very likely see continuation of the ping-pong at the FCC between classifications of broadband as an information service and as a telecommunications service.”

Also speaking out in favor of the decision was US Telecom CEO Jonathan Spalter, who said in a statement that the court “got it right and affirmed what anyone who has been paying attention to Washington’s net neutrality saga knows to be true: the internet is open, ISPs are investing to bring internet users the content they want, and we remain absolutely opposed to anti-consumer practices like blocking, throttling and anti-competitive paid-prioritization.”

Sen. Ed Markey, D-Mass., a longtime network neutrality proponent, said in a statement that the court’s decision “leaves the future of the free and open internet in question.”

“When I attended the net neutrality court hearing earlier this year, I heard the FCC and broadband industry use tortured logic to defend the repeal of net neutrality and undermine strong rules for an open internet,” Markey said. “Sadly, today’s court opinion doesn’t reflect the clear reality that Americans rely on the internet the way they rely on electricity or telephone service.

But at the FCC, the court’s decision providing something for everyone.

In dueling press statements, both Republicans and Democrats at the FCC claimed victory.

Said the Republican Pai, ignoring the criticisms of the ruling made by the three judge panel:

“Today’s decision is 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.  The court also upheld our robust transparency rule so that consumers can be fully informed about their online options.  Since we adopted the Restoring Internet Freedom Order, consumers have seen 40 percent faster speeds and millions more Americans have gained access to the Internet.  A free and open Internet is what we have today and what we’ll continue to have moving forward.  We look forward to addressing on remand the narrow issues that the court identified.”

Commissioner Geoffrey Starks, a Democrat highlighted the fact that states remain free to pass net neutrality legislation:

“Above all else, today’s decision breathes new life into the fight for an open internet.  It confirms that states can continue to step into the void left by this FCC.  To that end, it is a validation of those states that have already sought to protect consumers, and a challenge to those that haven’t yet acted to think hard about how to protect their citizens.  More pointedly, the decision affirms that the FCC ignored key aspects of its mission with regard to public safety and broadband deployment.  And the decision admonishes this Commission for its failure to consider the impact of its action in this context on Lifeline, a critical program that makes broadband more affordable for low-income consumers.”

Net Neutrality

FCC’s Simington Welcomes Congressional Action on Net Neutrality

The commissioner prefers going the route of legislation over Democratic FCC commissioners leading the charge for neutrality protections.

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Photo of Federal Communications Commissioner Nathan Simington, left

WASHINGTON, June 1, 2022 – Federal Communications Commissioner Nathan Simington said last week he would welcome congressional legislation to address debates over policy on net neutrality that continue to rage as the commission considers provisions that would protect the principle.

In a keynote address at an event Thursday on net neutrality hosted by think tank The R Street Institute, the Republican commissioner — who has opposed the net neutrality provisions imposed in 2015 by the commission under the former President Barack Obama – indicated he would prefer legislative action on net neutrality policy to proposals of Democratic FCC commissioners to regulate it through policy of the commission.

“Personally I would welcome congressional action to put this issue to rest,” said Simington, “I think a good law would focus on preventing blocking.”

Under the administration of former President Donald Trump, the FCC had in 2017 reversed the Obama-era net neutrality provisions, which prevented internet service providers from having a hand manipulating the data traffic over their networks to do things like provide faster or free access to certain applications.

Simington’s comment is significant for two reasons: because it comes after FCC Chairwoman Jessica Rosenworcel told lawmakers earlier this year that she is committed to the idea of the restoration of net neutrality principles; and because the commission is on the cusp of a Senate-approved fifth commissioner in Democrat and net neutrality advocate Gigi Sohn, which would break the 2-2 party split and would signal less friction when approving the Democratic agenda.

Thursday’s event also featured a panel that discussed issues such as whether a new agency must be created to deal with issues of net neutrality or whether an existing body such as the Federal Trade Commission can fulfill that role.

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Net Neutrality

Ninth Circuit Court of Appeals Denies Efforts to Eliminate California Net Neutrality Law

A coalition of telecommunication trade associations were unable to sway the court.

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Photo of FCC Chairwoman Jessica Rosenworcel

April 20, 2022 – The U.S. Court of Appeals for the Ninth Circuit on Wednesday denied the efforts of telecommunications trade groups to to rehear its prior decision upholding California’s 2018 net neutrality law.

In January, the court turned back industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, who had sought to overturn California’s SB 822 on the grounds that the Federal Communications Commission federal rules on net neutrality conflict with California’s state level rules.

Then, the appeals court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

On Wednesday, the appeals court refused to reconsider whether the California law had been preempted by the FCC’s decision.

In January 2018, the FCC – administered by then-Commissioner Ajit Pai – rescinded rules put in place in 2015 by the Obama administration that had reclassified broadband services from “information services” to “telecommunication services.” The latter category is subject to far more regulations.

Later that year, California passed SB 822, putting net neutrality requirements in place for California consumers, even after the rules had been gutted at the federal level by the FCC.

On the federal level, the D.C. Circuit Court of Appeals upheld the Trump administration’s removal of net neutrality requirements in October 2019. Although the Pai FCC’s reclassification was largely upheld by the D.C. circuit court, the victory was tempered by the court’s decision, by a two-to-one margin, to vacate the FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

In a tweet about Wednesday’s ruling, FCC Chairman Jessica Rosenworcel said:

  • The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law. This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land.

“As expected, the 9th U.S. Circuit Court of Appeals has rejected yet another attempt by internet service providers to overturn California’s strong net neutrality law,” said John Bergmayer, Legal Director at Public Knowledge.

“The California net neutrality law is now undefeated in court after four attempts to eliminate it,” he said. Net neutrality protections nationally continue to be common sense and popular with the public among all ideologies. It’s good news that Californians will continue to enjoy this important consumer protection, and we look forward to a full Federal Communications Commission restoring net neutrality nationwide.”

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Net Neutrality

Federal Appeals Court Upholds California’s Net Neutrality Rules

The ruling prevents internet providers in the state from abandoning net neutrality for broadband customers.

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Photo of Mary Schroeder, Chief Judge of the Ninth Circuit Court, from the May 2006 Swarthmore commencement address

January 28, 2022 – The Ninth Circuit Court of Appeals on Friday ruled against broadband companies seeking to block a state net neutrality law, and internet policy advocates are calling it a win for consumers in California.

The ruling comes after industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, sought to overturn California’s law on the grounds that the Federal Communications Commission’s now-abandoned federal rules on net neutrality conflict with California’s state level rules.

The court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

SB 822, or the California Internet Consumer Protection and Net Neutrality Act of 2018, restricts internet service providers from some activities. For example, the state law prevents paid prioritization, or agreements that would optimize data transfer rates large companies including Facebook, Google and Netflix.

The law also prohibits so-called “zero-rating” practices that some believe exploit consumers by allowing free access to some services but not others.

John Bergmayer, legal director at Public Knowledge, called the ruling a “great decision and a major victory for internet users in California and nationwide.”

“When the FCC has its full complement of commissioners, it should put into place rules at least as strong as California’s nationwide, making some state measures unnecessary. But even after that happens, this decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”

But Randy May, president of the Free State Foundation, said “like a lot of Ninth Circuit decisions, it is arguable that the court got the law wrong regarding whether California’s net neutrality law is preempted. Given the inherently interstate nature of today’s tightly integrated broadband internet networks, there’s a good chance that other circuits might reach a different conclusion regarding preemption.

May said that the risks of a patchwork of state regulations “should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem.”

The opinion was authored by Ninth Circuit Chief Judge Mary Schroeder and joined by Judge Danielle Forrest with a concurrence by Judge J. Clifford Wallace.

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