A federal appeals court on Tuesday largely upheld the Federal Communication Commission’s rollback of so-called net neutrality rules, but the issue is not quite settled as the court also left leeway for states to implement their own rules regulating internet traffic.
The court’s decision, which applies to both mobile and fixed broadband providers, drew immediate responses from all sides of the net neutrality debate, with each claiming something in their favor.
Claude Aiken, president and CEO of WISPA, a group representing smaller wireless internet service providers, said in a statement the group welcomed the District Court's outcome.
“The onerous Title II rules, which the FCC adopted in 2015, presented a significant obstacle to deployment for our members, the overwhelming majority of whom are small ISPs serving underserved rural communities,” Aiken said. “The FCC’s 2018 Restoring Internet Freedom Order (RIFO) for the most part represents the right approach to these matters – one which keeps inapt, utility regulation away from the Internet, and in doing so, promotes ubiquitous broadband deployment via the light-touch regulatory regime WISPA has favored.”
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On the other side of the issue, Public Knowledge Legal Director John Bergmayer applauded the divided court’s move to strike down part of the FCC’s 2017 order that aimed to preempt states from implementing their own tighter restrictions, adding that “states should move expeditiously to protect consumers.”
“We are gratified that the Court agreed with Public Knowledge and other petitioners on the matter of preemption. As we argued, once the Commission decided not to regulate broadband, it lost the ability to preempt states from doing so,” said Bergmayer in a statement. “The Commission’s choice to give up oversight of broadband means that states now have the clear authority to step in to protect consumers and promote competition where the FCC is unwilling to do so. The Court’s decision leaves states with a clear path forward to enact state net neutrality laws to protect internet users and provide certainty for participants in the digital economy.”
Some states, including California, have already passed their own net-neutrality laws, but a U.S. Department of Justice lawsuit to block the California legislation was put on hold pending the outcome of today’s decision.
So while states can pass their own net-neutrality laws, it looks like the fight might not be over as the FCC could still step in and try to block states’ statutes if they conflict with the RIFO, but would have to litigate on a case-by-case basis.
Many, including the Internet Innovation Alliance (IIA), have called on Congress to step in and help put an end to the long-running back and forth on net-neutrality issues.
“Unless Congress codifies nationwide open internet rules, including the designation of broadband as an information service, we will very likely see continuation of the ping-pong at the FCC between classifications of broadband as an information service and as a telecommunications service,” IIA said in a statement.
The opinion issued by the D.C. Circuit Court of Appeals upheld part of the FCC’s 2017 RIFO that reclassified internet service providers as delivering information services, which repealed regulations on broadband providers that were imposed under the previous Title II classification of telecommunication services. The FCC wanted to move to a more light-touch regulatory approach and indicated regulations stifled broadband investment. Put in place in 2015 during the Obama Administration, Title II regulations included rules prohibiting ISPs from prioritizing or blocking internet traffic from some services in favor of others.
When these were pulled back as part of the FCC’s deregulation efforts under the RIFO, it stoked concerns that major providers like AT&T and Verizon would prioritize, block or slow internet traffic from certain services for their own gain. This prompted blowback from consumer advocacy groups and tech giants like Facebook and Amazon, as well as the federal lawsuit.
IIA called for bipartisan legislation to help provide clarity: “Congress can and should put a stop to net neutrality uncertainty. Congress needs to enact bipartisan legislation that will remove the open internet issue from politics, and enshrine in that law the core principles of an open internet – no blocking of legitimate online content, no paid prioritization, no throttling based on content or unfair discrimination against content. The law should create robust consumer privacy protections that apply to all companies in all parts of the internet ecosystem equally.”
FCC officials, too, were divided in their praise for aspects the court’s decision.
FCC Chairman Ajit Pai in a statement called the decision a victory “for consumers, broadband deployment, and the free and open Internet. The court affirmed the FCC’s decision to repeal 1930s utility-style regulation” and “upheld our robust transparency rule so that consumers can be fully informed about their online options.”
However, Democratic FCC Commissioner Jessica Rosenworcel, who voted against the FCC rollback in late 2017, said in a statement: “The agency made a mess when it gave broadband providers the power to block websites, throttle services, and censor online content. Today’s court decision vacates the FCC’s unlawful effort to block states and localities from protecting an open internet for their citizens.”
She also said the “court took the agency to task for disregarding its duty to consider how its decision threatens” items like public safety, Lifeline service, and pole attachments, which were remanded back to the FCC so the agency could reconsider impacts of its 2017 order.
“As the FCC revisits its policies in light of the court’s directives, I hope it has the courage to run an open and fair process,” Rosenworcel said.
Pole attachments and broadband infrastructure are an issue WISPA is particularly concerned with.
“Our members are not traditional common carriers or cable operators, and, with the Court’s upholding of RIFO which repeals reclassification, that means our members cannot access poles via the Communications Act,” said Aiken in his statement. “We urge Congress and the Commission to address this in a manner which brings all communications players to the table.”
In Pai’s statement, he said that the FCC looks “forward to addressing on remand the narrow issues that the court identified.”