9 October 2019

D.C. Circuit Vacates FCC Order Preempting State Net Neutrality Regulation And Remands

Jones Day


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Court's ruling opens the door to state-level net neutrality regulation.
United States Media, Telecoms, IT, Entertainment
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In the latest development in the Federal Communications Commission's ("FCC") decade-long approach to net neutrality, the U.S. Court of Appeals for the D.C. Circuit vacated the FCC's 2018 order preempting state net neutrality regulations and remanded three discrete issues to the FCC, but otherwise affirmed the FCC's latest net neutrality policy.

The FCC's 2018 "Restoring Internet Freedom Order" classified broadband internet access service as an information service under Title I of the Communications Act, repealed and replaced the net neutrality rules adopted in the FCC's 2015 "Open Internet Order," and preempted state net neutrality regulations that are inconsistent with the FCC's deregulatory approach.

Although the D.C. Circuit deferred to the FCC's classification order, the court's decision puts net neutrality back on the FCC's agenda. In vacating the FCC's preemption order, the court explained that the FCC "has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission 'repealed or decided to refrain from imposing' in the Order or that is 'more stringent' than the Order." In remanding three discrete issues, the court held that the FCC failed to adequately consider the impact of its decision on public safety, pole attachments, and the Lifeline Program.

Senior Judge Williams explained in a separate opinion that he would have affirmed the FCC's preemption order.

The court's decision has no immediate effect because the court withheld its mandate while the parties consider next steps in the litigation. In the meantime, the FCC's Restoring Internet Freedom Order remains effective.

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