A federal appeals court this week largely upheld the FCC's repeal of net neutrality rules, but rejected the commission's claim that it can automatically block US states from imposing their own rules regulating internet broadband.
The Tuesday ruling from the DC Circuit Court of Appeals found the FCC had failed to show it had "legal authority" to preempt the states from enacting their own net neutrality rules with its 2018 repeal of Obama-era regulations.
That said, the same ruling opens the door for the FCC to challenge the states individually in court. "If the Commission can explain how a state practice actually undermines the 2018 (net neutrality repeal) Order, then it can invoke conflict preemption," the judges declared. "If it cannot make that showing, then presumably the two regulations can co-exist."
As a result, the public can expect more legal battles around net neutrality in the coming years. Silicon Valley companies and state governments have been fighting the FCC's repeal order in the appeals court amid concerns ISPs will create a tiered system of access whereby consumers have no way to fight policies like blocking, throttling, and paid prioritization with service plans.
The FCC claims net neutrality rules have prevented ISPs from investing in broadband expansion (although a newly released study flatly contradicts this.)
In the meantime, dozens of states have introduced bills to create their own net neutrality rules. California, for instance, passed a law to prevent ISPs from blocking or throttling connection speeds, but has delayed enforcement after the Justice Department filed a lawsuit to invalidate the law.
Today's ruling is encapsulated in a 186-page document. So lawyers on both sides of the net neutrality debate still need time to study the decision and its potential implications. Nevertheless, FCC Chairman Ajit Pai is calling the ruling a victory for consumers and US broadband deployment. "A free and open internet is what we have today and what we'll continue to have moving forward," he said in a statement.
However, supporters of net neutrality rules say the same ruling empowers states to move on with their own regulations. For example, California's net neutrality law remains intact under the ruling, said state Senator Scott Weiner in a tweet. Others, such as the Center for Democracy and Technology, are calling on Congress to pass a federal law regulating broadband providers, which is unlikely with a GOP-led Senate.
Tuesday's ruling has requires the FCC to fully examine how its repeal of the Obama-era net neutrality rules will affect public safety and the Lifeline Program, which subsidizes phone and broadband service to low-income consumers. However, the lack of clarity was not enough to cause the judges to vacate the FCC's repeal of the net neutrality rules.