A federal appeals court Tuesday upheld most of the Federal Communications Commission’s 2017 decision to jettison Obama-era net neutrality rules, at least for now. But the court said the FCC overstepped its authority in banning states from enforcing their own net neutrality regulations.
The mixed decision is the latest twist in the long battle over net neutrality. In 2015 the FCC passed sweeping rules banning broadband internet providers from blocking or otherwise interfering with lawful content. But in 2017 the now Republican-controlled FCC repealed the 2015 rules and banned states from passing their own rules. Soon after, a coalition including state attorneys general, internet industry groups, and nonprofit organizations filed suit, arguing the FCC’s decision was illegal.
Meanwhile, California and Washington state passed their own net neutrality laws last year, and other states, including New York, Montana, Vermont, and Oregon, passed laws or imposed executive orders banning state agencies from buying services from broadband providers that violate net neutrality. Tuesday’s decision stops the FCC from preempting those laws automatically, but they can still be challenged on a case-by-case basis. The US Justice Department filed suit against California shortly after then-governor Jerry Brown signed the state’s net neutrality bill into law last year, but the two sides later agreed to delay the case until the lawsuit over the FCC rules was resolved.
Even before the FCC jettisoned its rules, mobile broadband providers were selling “unlimited” services that deliver videos at slower speeds than other content. It’s not clear if these practices violate any state’s net neutrality regulations. Verizon has argued that its video throttling practices were permitted even under the FCC’s old rules under an exception that allowed broadband providers to slow connection speeds for purposes of “reasonable network management.”
In its decision Tuesday, the appeals court also ruled that the FCC hadn’t adequately considered how repealing the net neutrality rules would affect public safety, utility pole regulations, and an FCC program that subsidizes phone and internet service for low-income families. But the court gave the FCC a chance to address those issues instead of overturning the commission’s decision.
“Today’s decision is a victory for consumers, broadband deployment, and the free and open internet,” FCC Chair Ajit Pai said in a statement. “We look forward to addressing on remand the narrow issues that the court identified.”
But the battle is far from over. Mozilla, which led the lawsuit against the FCC, is considering an appeal, the organization’s chief legal officer Amy Keating said in a statement. Meanwhile, Congress is considering several net neutrality bills, including one that would restore the Obama-era FCC rules. And the FCC still has to address the court’s outstanding concerns.
Net neutrality advocate and former FCC lawyer Gigi Sohn says the court could still void more of the FCC order, or the entire thing, if the FCC’s response to those issues isn’t adequate. “I don’t see it as a victory for the FCC at all,” Sohn says. “Anyone popping champagne corks at the FCC hasn’t read the whole decision.”
In the suit, net neutrality advocates challenged the FCC’s repeal on several grounds. They argued that the FCC’s decision to overturn its net neutrality rules just three years after adopting them violated the Administrative Procedure Act, which forbids federal agencies from making “arbitrary and capricious” decisions. They also questioned whether the FCC must consider broadband internet providers as common carriers like providers of traditional telephone services.
The court affirmed the FCC’s authority to decide whether broadband should be considered a common carrier service. It also rejected arguments by Mozilla and others regarding the FCC’s questionable claims that net neutrality regulations harm broadband investment. But it ruled that the FCC acted arbitrarily and capriciously in some instances. For example, the court said the FCC had not adequately considered the public safety implications of repealing net neutrality. As part of the lawsuit, Santa Clara County, California, highlighted a much publicized instance of Verizon throttling firefighters’ mobile internet speeds during the 2018 California wildfires after the firefighters exceeded their data caps. The FCC’s Obama-era rules didn’t explicitly prohibit data caps, but did prohibit “unjust or unreasonable prices and practices.” The court decided that the 2018 incident, which occurred after the FCC’s 2017 vote, shouldn’t be considered as evidence in the suit. Even without that evidence, though, the court said the FCC had failed to consider public safety implications of giving up its authority to regulate broadband providers as common carriers. The FCC now has to address the matter.