D.C. Circuit Court of Appeals upholds net neutrality repeal while striking down preemption of state and local regulations

In an opinion delivered on October 1, 2019, the United States Court of Appeals for the District of Columbia Circuit upheld the FCC’s 2018 net neutrality repeal but struck down the agency’s preemption of state and local net neutrality regulations. The court also directed the agency to consider how the repeal would affect public safety, broadband subsidies, and the regulation of cable pole attachments.
The case arose when attorneys general from 22 states and the District of Columbia filed a brief with the D.C. Circuit Court of Appeals on August 20, 2018, asking the court to reinstate the Obama administration’s net neutrality regulations. In the brief, the attorneys general said the FCC’s repeal of net neutrality would harm consumers, public safety, and existing regulations. They also claimed the FCC was not authorized to preempt state and local laws.
During the 2019 legislative session, 29 states introduced net neutrality legislation, but the measures failed in four states. Despite the FCC’s preemption, six states—California, Colorado, Maine, Oregon, Vermont, and Washington—have passed legislation relating to net neutrality. Further, the governors of six states—Montana, New York, Hawaii, New Jersey, Rhode Island, and Vermont—issued executive orders requiring internet service providers that do business with the state to comply with net neutrality rules.
This case is one of at least 47 multistate lawsuits that have been filed against the federal government since President Donald Trump took office in January 2017.