DC Circuit Affirms Consumer Control Over the Internet

The American Legislative Exchange Council applauds the D.C. Circuit Court of Appeals decision to affirm a light-touch regulatory approach for broadband services. The court released its opinion in Mozilla v. Federal Communications Commission—better known as the “net neutrality” decision—this morning. The court largely handed the FCC a victory, sustaining the 2018 Restoring Internet Freedom Order (RIFO). Though, the court did vacate part of the decision and ask the FCC to clarify some of its decision-making process.

The core of the decision, discussing the classification of broadband as an information service, affirmed the RIFO. The RIFO, in turn, sought to reverse the FCC’s 2015 Open Internet Order (OIO). The OIO tried to reclassify broadband as a Title II telecommunications service, subject to a law crafted in the 1930s. The attempt to reclassify broadband services as a Title II telecommunications service was nothing more than a naked power grab by the Obama Administration. The court determined the 2018 decision to reinstate the information service classification for broadband that existed until 2015 fell within the FCC’s discretion.

According to Chairman Pai:

“[The] decision is a victory for consumers, broadband deployment, and the free and open Internet.  The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior Administration.  The court also upheld our robust transparency rule so that consumers can be fully informed about their online options.”

The victory was not a complete one, though, as the court decided to vacate the provisions attempting to preempt state laws and remanded three specific topics for clarification back to the FCC. Those three specific topics include the RIFO’s impact on public safety, poll attachments and the Commission’s Lifeline program.

The court’s decision to vacate the preemption provision was qualified, though. The FCC may successfully challenge specific state laws or practices if those laws “actually undermine[ ] the 2018 Order.” With this door open, litigation in California and other states will restart, and the FCC will be able to make a much clearer case as to why its RIFO has either occupied the regulatory field or expressly preempted state net neutrality legislation.

The vacated preemption rule and the specific topics remanded to the FCC should not impact the overall reclassification decision. As such, the core of the FCC’s 2018 RIFO remains in place, which represents a great victory for those who wish to direct their internet experiences rather than relying on government bureaucrats to make decisions for them.

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