The DC Circuit Court handed down its decision in the high-profile net neutrality case, Mozilla v. FCC, and both sides treated it as a victory.
In a victory for the Ajit Pai-led Federal Communications Commission, the court upheld the FCC’s repeal of the 2015 Open Internet Order, which classified broadband as an information service under Title I regulation, not a telecommunication service under Title II regulation. This means the FCC no longer regulates the internet. Instead, the Federal Trade Commission does.
In an interview on Fox & Friends, FCC Chairman Ajit Pai said the Obama administration’s FCC wanted to treat the internet as a “slow-moving utility.”
“In 2017, we decided no, we want the internet to move fast,” Pai said. “We want the market to determine how this technology develops. I’m very excited for what this means for consumers,” he added, claiming that internet speeds are up 40 percent since repealing the Open Internet Order.
But the court also ruled that the FCC can’t preempt state net neutrality laws, which validates California’s controversial Internet Consumer Protection and Net Neutrality Act, passed in 2018.
Now, net neutrality advocates plan on taking court and legislative fights over net neutrality to the states, while Big Cable and Big Telecom are calling on Congress to write a federal law and end the back-and-forth once and for all.
Evan Greer, deputy director of net neutrality advocacy group Fight for the Future, said FFTF will also fight for Congress to legislate net neutrality, and called on 2020 Democratic presidential candidates to support net neutrality.
“All eyes are now on the Senate to do its job and pass the Save The Internet Act to fully restore net neutrality,” she said. “Every single 2020 presidential candidate must immediately commit to fully restoring net neutrality protections if elected. Meanwhile, the court decision creates a huge opportunity and a clear path forward for us to fight to restore net neutrality state by state. We fought for and won the strongest net neutrality protections in the country in California with overwhelming bipartisan support, and now we can copy and paste that strategy across the country.”
The Electronic Frontier Foundation, one of the top privacy and free speech think tanks, said the FCC will likely face an onslaught of lawsuits from states over net neutrality.
“Congress also has a responsibility to bring this debate to an end and reflect the super-majority opinion of the public that net neutrality should be the law of the land.,” wrote EFF net neutrality experts Corynne McSherry, Katharine Trendacosta and Ernesto Falcon in a blog post. “The House of Representatives has already done its job with the passage of the Save the Net Act but it remains blocked by the Senate’s inaction, effectively doing the work big ISPs like AT&T, Verizon, and Comcast want. Congress and the states should both be acting to protect the Internet and its users.”
Tom Struble, manager of Technology and Innovation for the R Street Institute, explained that based on the court’s definition of “preemption,” the FCC can still trump state laws on net neutrality if the FCC decides to challenge them in court.
The FCC tried to say that it has authority from Congress to stop states from passing any net neutrality laws in the first place, but the court ruled that Congress never gave the FCC such broad authority.
“That means state net neutrality laws are still vulnerable to preemption, but it will have to be done in a separate case,” Struble said on Twitter.
The NCTA-Internet and Television Association and US Telecom, the two trade associations representing Big Cable and Big Telecom, called on Congress to legislate the issue.
“Where do we go from here? While we are still reviewing the details, one thing is clear: Congress must end this regulatory rinse and repeat cycle by passing a strong national framework that applies to all companies, maintains our dynamic and open internet, and sustains our global digital leadership for the next generation and beyond,” said US Telecom CEO Jonathan Spalter.
In an email to InsideSources, AEI visiting tech scholar Roslyn Layton said the FCC will likely sue states like California if they try to pass net neutrality laws, which means the fight is far from over.
She also worries that a brave new world of net neutrality litigation will hurt consumers and benefit Big Tech companies like Facebook and Google, which, she argues, “freeload” off of internet service providers like Comcast and Verizon.
“Net neutrality litigation, which drives tens of millions of dollars annually and keeps law firms and legal advocates afloat, is a pittance for the Silicon Valley companies, represented by lead petitioner Internet Association,” she said. “They want a price control that enshrines their dominance and makes their internet access price zero. That abuse of the regulatory system has been struck down for now. Ultimately, the best way to resolve this is for Congress to come together and pass a permanent, legislative solution that’s grounded in common sense.”
Congressional efforts to legislate net neutrality have stalled due to stark differences between Democrats and Republicans over the issue.
