The Court rules that the FCC’s repeal stands, but US states can override it.
Background: In June 2018, the FCC repealed the net neutrality rules which had been in place since 2015. The “Restoring Internet Freedom” order allowed the Commission to reclassify broadband as an ‘information service’, thereby moving it away from the basket of ‘telecommunications services’. The provisions against blocking, throttling, and paid-for prioritisation were removed. The 2018 order also sought to prevent individual states from legislating in a manner inconsistent with the FCC’s repeal of net neutrality.
Legal challenges soon started: The FCC’s decision was almost immediately subject to legal challenges. This week, the DC Circuit Court of Appeals ruled on the lawsuit moved by Mozilla, consumer groups, and attorney generals of 22 states. The ruling had a mixed outcome: on the one hand, it allows the FCC decision to stand, as the judges found the challengers’ arguments to be unpersuasive, and did not want to “flick the on-off switch” again on common-carrier rules; on the other hand, the court took down the part of the Order which prevents US states from passing their own rules.
What happens now? While the FCC can claim a partial victory since its repeal of the net neutrality rules stands, the decision of the Court is likely to lead to a huge fragmentation state-by-state. Five states have already passed legislation or rules to protect net neutrality; initiatives are ongoing in 35 other states, which could lead to rules being passed in each of them.
