On Tuesday, the D.C. Circuit Court of Appeals issued a ruling on the challenge to the FCC’s 2017 net neutrality repeal. The ruling barely upheld the repeal, but sent it back to the FCC for failure to deal with public safety and for deficiencies related to Lifeline subsidies and access to utility poles by broadband-only providers.
Crucially, the court ruled that the FCC’s abdication of oversight over broadband providers left it with no power to prevent states from providing their own net neutrality protections.
Here’s my statement:
“Today’s decision that the FCC can’t stop states from protecting their citizens online is a historic win for California and all Internet users.
In 2017, the FCC abolished all net neutrality protections and abdicated its duty to ensure the nation’s most important communication system remains open and free. The repeal took effect last June, leaving American Internet users unprotected for the first time since the Internet’s inception.
Last year, California stepped in to protect Californians by passing a law that restores net neutrality in the state. Today’s ruling shows California had the right to do so.
While the FCC's 2017 Order explicitly banned states from adopting their own net neutrality laws, the court ruled that preemption is invalid.
As I argued in support of California’s law and in a brief to the court, an agency that has no power to regulate has no power to preempt the states. When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers. That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protections.
Today’s decision is based on this theory.
“In any area where the Commission lacks the authority to regulate, it equally lacks the power to preempt state law,” the court said.
California’s net neutrality law SB 822, championed by California State Senator Scott Weiner, went into effect on January 1, 2019. SB 822 is the first state-level law that truly restores all of the 2015 net neutrality protections. That’s why it’s widely viewed as a net neutrality model law.
SB 822 ensures that Californians, not the companies they pay to get online, get to be in control of what sites, apps and services they use. SB 822 bans ISPs from blocking, throttling, and charging websites fees for access to the ISP’s subscribers or for fast lanes, which protects California’s economic growth, innovation economy and democratic engagement.
Until Congress or a new FCC restores comprehensive net neutrality protections, it is up to the states to protect their citizens. Today, the D.C. Circuit Court of Appeals cleared the way. If other states want to act, SB 822 is the gold standard they should follow.
Professor Barbara van Schewick is a professor of law at Stanford University and the director of Stanford Law School’s Center for Internet and Society.