Ride the Lightning

Federal Net Neutrality May Be Toast But the States Can Still Act

October 2, 2019

As CNET reported, net neutrality suffered a stinging blow at the hands of the D.C. Circuit Court of Appeals yesterday. The court issued a mixed ruling on the Federal Communications Commission repeal of Obama-era net neutrality rules. The court upheld the FCC's repeal of the rules but struck down a key provision that blocked states from passing their own net neutrality protections.

The DC Circuit Court of Appeals also remanded another piece of the order back to the FCC and told the agency to take into consideration other issues, like the effect that the repeal of protections will have on public safety. The decision in Mozilla v. Federal Communications Commission is by no means the end of the story.

The case pitted Mozilla and several other internet companies, such as Etsy and Reddit, as well as 22 state attorneys general, against the Republican-led FCC. They argued that the FCC hadn't provided sufficient reason for repealing the rules.

While the court agreed that broadband companies have an incentive to block competitors and favor their own services, it agreed with the Republican-led FCC that the agency had the discretion to decide how those harms should be mitigated. In its repeal, the FCC suggested the Federal Trade Commission and existing antitrust law could deter misbehaving ISPs.

The states are now free to do what the FCC will not.

Several states including, California and Washington, are considering or have passed legislation. The Trump Justice Department has challenged the California law in federal court, but the lawsuit has been on hold, pending the outcome of this federal case.

Once Democrats regained control of the US House of Representatives, they passed the Save the Internet Act in the spring of 2019. This bill essentially restores the Obama-era net neutrality protections that were repealed in 2017. But Republican Senate Majority leader Mitch McConnell, a Republican from Kentucky, has refused to bring the bill for a vote in the Senate.

It's unclear if Tuesday's court decision will move this legislation in either direction or if politicians on Capitol Hill will wait for results in the 2020 presidential election before their next move.

Several polls over the past year suggest an overwhelming majority of Americans, regardless of political affiliation, say they support the principle of net neutrality and that internet service providers shouldn't block or slow access to content on the Web. But it's unclear how important the issue will be to voters next fall during the presidential election. Several candidates for the Democratic nomination for US president, including Bernie Sanders, Elizabeth Warren and Pete Buttigieg, say that if elected they will only nominate commissioners who support net neutrality rules.

This story will no doubt continue to unfold.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
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