Court mostly OKs FCC's net neutrality repeal but lets states craft their own rules
In addition to the reclassification issue, the judges also questioned the authority the FCC asserted to block states from crafting their own net neutrality protections, the repeal’s potential impact on public safety communications and whether transparency requirements from the repeal order would be effective in preventing anticompetitive or consumer-harming behavior by ISPs. Those requirements hold that providers have to disclose if they engage in practices like blocking websites or slowing traffic.
The judges ultimately found challengers' arguments "unconvincing for the most part," and upheld the vast majority of the order, including the reclassification. But they found the FCC lacked the authority to stop states from issuing their own net neutrality rules.
"No matter how desirous of protecting their policy judgments, agency officials cannot invest themselves with power that Congress has not conferred," the decision said.
The court also ordered the FCC to produce evidence that it's considered the repeal's impact on public safety, telecom companies' access to utility poles and the Lifeline program, which provides telecom subsidies for low-income people. Any agency proceeding meant to to prove that the repeal won't cause harm around those issues could trigger a further lengthy court battle.
The court noted the lengthy legal battle in explaining why it sent back several issues to the FCC to address, rather than vacating those portions of the order.
"Regulation of broadband internet has been the subject of protracted litigation, with broadband providers subjected to and then released from common carrier regulation over the previous decade," the opinion said. "We decline to yet again flick the on-off switch of common-carrier regulation under these circumstances."
Challengers to the FCC’s repeal included Mozilla, which pushes for open-internet principles and runs the Firefox internet browser; consumer advocacy group Public Knowledge; tech trade association Incompas; and New York, California, Washington and other state and local governments.
Andrew Schwartzman, who represented the Benton Institute for Broadband and Society in challenging the FCC, said the opinion provides a roadmap to creating rules that will protect consumers.
"Even on a quick reading, it is clear that the fight over net neutrality is just beginning," Schwartzman said in a statement. "The FCC can try to fix its mistakes, but the court made it clear that the Commission cannot block states from passing their own net neutrality statutes and issuing executive orders. Those will have to be reviewed case by case."
The agency’s repeal was supported by a slew of trade groups representing internet service providers, including USTelecom, NCTA — The Internet & Television Association, CTIA — The Wireless Association, American Cable Association, and Wireless Internet Service Providers Association.
The D.C. Circuit previously upheld the telecommunications classification and the Obama-era rules in 2016. But the FCC has a Supreme Court precedent from 2005 finding it's reasonable to classify internet connections as an information service.
The three judges wrote in individual opinions that they agreed on the broad strokes of the collective ruling, though Williams, appointed by President Ronald Reagan, broke with the other two on striking down the portion of the order that would preempt state net neutrality laws. He said the FCC was well within its rights to do so because it would be impossible to enforce differing state laws on the inherently interstate internet.
https://www.politico.com/news/2019/10/01/fcc-net-neutrality-014801
