States Can Set Own Net Neutrality Rules, Court Says

A federal appeals court on Tuesday issued a mixed ruling on the Federal Communications Commission repeal of Obama-era net neutrality rules. The court upheld the FCC’s repeal of the rules, but struck down a key provision that blocked states from passing their own net neutrality protections. The DC Circuit Court of Appeals also remanded another piece of the order back to the FCC and told the agency to take into consideration other issues, like the effect that the repeal of protections will have on public safety. The Republican-led FCC voted in 2017 to roll back the popular rules, which prohibited broadband companies from blocking or slowing access to the internet in a 3-2 vote along party lines. The rules also barred internet providers from charging companies to deliver their content faster. The case pitted Mozilla and several other internet companies, such as Etsy and Reddit, as well as 22 state attorneys general, against the Republican-led FCC.

They argued that the FCC hadn’t provided sufficient reason for repealing the rules. The decision is the latest chapter in the decade-long fight to protect the internet from excessive control by big broadband companies and how the internet should be regulated. The court largely agreed with the Republican-led FCC that the agency had the discretion to decide how to classify broadband. The Obama-era rules had reclassified broadband as a so-called common carrier service, which treated broadband like a public utility, subject to many of the same regulations as traditional phone service. The 2017 repeal reinstated the less regulated classification of broadband, providing what Chairman Pai and other Republicans have called a “light touch” regulatory approach. DC Circuit said in its opinion. The states are now free to do what the FCC will not. Gigi Sohn, adviser, former FCC Chairman Tom Wheeler The regulations didn’t officially come off the books until June of last year.

The backlash among supporters was immediate, with Democrats in Congress promising to bring the rules back and a slew of states, like California and New York, proposing their own laws to protect consumers. On this point, the court sided with net neutrality supporters ruling the FCC had overstepped its authority when it barred states from passing their own net neutrality protections. That piece of the decision is seen as the silver-lining in the decision for net neutrality supporters. Following the ruling, Mozilla said it’s still considering its next steps. But the company, best known for its Firefox browser, has vowed to continue fighting for net neutrality protections. It’s encouraged by the court’s decision to throw-out the FCC’s blanket preemption of state net neutrality laws. This will “free states to enact net neutrality rules to protect consumers,” Amy Keating, chief legal officer for Mozilla, said in a statement. Other net neutrality supporters are also focusing on the state preemption issue. Gigi Sohn, an adviser to former FCC Chairman Tom Wheeler, who helped write the 2015 net neutrality rules, said this gives states an opportunity to protect consumers.

But a senior FCC official said on a call with reporters that the agency believes it still has the right to sue states to block regulations on a case by case basis. FCC Commissioner Jessica Rosenworcel, one of two Democrats on the FCC, said that it’s significant as well that the court told the FCC that it didn’t adequately address public safety concerns. The court remanded that portion of the order back to the agency. What is net neutrality? Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you’re checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Amazon. It also means companies like AT&T, which bought Time Warner, or Comcast, which owns NBC Universal, can’t favor their own content over a competitor’s. Now playing: Watch this: Net neutrality could be saved by a technicality 6:17 In order to make sure the rules could stand up to court challenges, the FCC did something else.

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