U.S. Court of Appeals for the D.C. Circuit panel upholds net neutrality repeal
Speaking of federal courts, let’s turn to a recent decision from the U.S. Court of Appeals for the D.C. Circuit. A three-judge panel of this court upheld the FCC’s 2018 repeal of net neutrality rules last week—on October 1—but struck down the agency’s preemption of state and local net neutrality regulations. Let’s back up a bit to put this ruling in context.
The Federal Communications Commission (FCC) established net neutrality—which is the concept that internet service providers (ISPs) should treat all internet traffic equally—through an order issued in February 2015. These rules classified ISPs as regulated public utilities that were prohibited from blocking or slowing web traffic or providing faster internet to certain content providers.
In February 2018, the FCC then repealed this order and ended the designation of ISPs as regulated public utilities. The FCC’s 2018 action also expressly preempted state and local authorities from imposing their own net neutrality rules or applying more stringent requirements on ISPs.
Following that decision, attorneys general from 22 states and the District of Columbia asked the D.C. Appeals Court to reinstate the FCC’s net neutrality regulations in August 2018. They said that the repeal of net neutrality would harm consumers, public safety, and existing regulations and claimed the FCC was not authorized to preempt state and local laws on the matter.
Last week’s court ruling also directed the agency to consider how the repeal would affect public safety, broadband subsidies, and the regulation of cable pole attachments. The panel was comprised of two judges appointed by President Obama and a senior judge appointed by President Reagan.
The governors of six states—Montana, New York, Hawaii, New Jersey, Rhode Island, and Vermont—have issued executive orders requiring internet service providers that do business with each state to comply with net neutrality rules. Five of those states have Democratic governors and Vermont Gov. Phil Scott is a Republican. Such orders only apply to ISPs that directly do business with state government agencies and do not apply to all ISPs in the state. Six states—California, Colorado, Maine, Oregon, Vermont, and Washington—have passed legislation relating to net neutrality. Five of those states were Democratic trifectas and one—Vermont—had divided government. Legislators in 29 states introduced net neutrality legislation during 2019.