A Setback for Net Neutrality Champions

In October 2019, proponents of net neutrality were delivered a blow when the D.C. Circuit Court of Appeals ruled that the FCC could legally repeal the net neutrality regulations put forth by the Obama administration. The D.C. Circuit remanded the rules to the FCC to consider any public safety implications, what reclassification would mean for regulation of utility pole attachments and to address concerns about how broadband reclassification would impact the Lifeline Program, which extended Reagan-era subsidies to low-income households for landline telephone service to stand-alone broadband service. These issues were not, and are not, large hurdles for the FCC to overcome to end net neutrality regulations.

A more far-reaching provision the court rejected relates to the FCC’s attempt to prevent states from passing their own net neutrality rules. The FCC’s proposed “Preemption Directive” would have prevented states from imposing rules that the FCC repealed or decided to refrain from imposing on a federal level. The D.C. Circuit ruled that the “Commission ignored binding precedent by failing to ground its sweeping Preemption Directive—which goes far beyond conflict preemption—in a lawful source of statutory authority. That failure is fatal.”

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The D.C. Circuit did not rule that state regulations could not be challenged once passed, only that the FCC could not preemptively halt states from passing their own regulations. If a state chooses to make their own net neutrality rules, then those laws or regulations could be challenged based on the actual content of the rules, not on the broad idea of states having their own rule. This effectively only delayed the fight against net neutrality and slightly changed the context. The D.C. Circuit also denied rehearing its decision in February 2020. It remains unclear whether the plaintiffs will seek review by the Supreme Court of the United States, but if they do not, then after the FCC reviews the limited issues it was ordered to review, the next stage of the fight appears to be headed solidly into litigation regarding state regulations (unless the FCC changes its regulations again).