Earlier this week, a District of Columbia appeals court said the Federal Communications Commission could legally abolish net neutrality – removing rules that prevented Internet service providers from striking specific websites or services. The ruling was a blow to activists who have struggled to maintain the Internet's status as a "regular carrier." But it gave them a big victory: The FCC cannot prejudice prevent states from imposing their own, stricter rules. And by doing so, it may open a new chapter in the fight for net neutrality.
Mozilla v. FCC ruling was fought through a wide variety of often-convoluted arguments, sometimes hanging on weird questions like "Can a smart washing machine ring?" But the section on state laws is relatively straightforward. The FCC's "Restoring Internet Freedom Order" of 201[ads1]8 banned state or local regulations that "impose stricter requirements on every aspect of broadband services that we address in this order." The FCC argued that this prevented a "patchwork" of inconsistent rules. The court disagreed.
The order states that Congress has not granted the FCC direct authority for such comprehensive control over local law, and the FCC cannot simply say that the rule serves an indirect purpose such as promoting competition. Finally, the court accuses the FCC of trying to get the cake and eat it too: the agency revoked net neutrality by reclassifying ISPs to reduce its authority over them, and then granted power over states … using the old classification it only had declined. (This is exactly what some legal experts predicted might happen.)
In particular, the FCC may still object to individual state laws. But it cannot declare that any stricter laws automatically violate the rules. "If the commission can explain how a state practice actually undermines the 2018 order, it can invoke conflict-of-freedom," the ruling explains. "If it can't show it, presumably the two regulations can coexist."
There is good news for the 34 states that have already introduced or adopted net neutrality rules. The most prominent of these is California, which passed what the Electronic Frontier Foundation called a "gold standard" bill last year. The California rule not only prohibits blocking and throttling, but also stops ISPs from zero-rating specific apps like Netflix, giving them a leg up by excluding them from data hacks. But the Justice Department sued to stop enforcement, and the rules have been on hold since last year – awaiting a resolution of their legal status.
The recent ruling does not set California clear yet. But a spokeswoman for California state attorney Xavier Becerra told the Los Angeles Times that it creates "solid ground" for a defense in court. And the bill's sponsor, California Senator Scott Wiener, wrote in a statement that he was "thrilled" by the ruling on state law. "As a result of this decision, California's Net Neutrality Act … remains completely intact and the most effective net neutrality law in the country," he said.
The FCC majority has maintained that this decision will not prevent it from imposing state rules – it only needs to make more specific arguments about its content. Conservative Commissioner Mike O. & # 39; Rielly, who celebrated the overall decision, portrayed it as more of a headache than an existential threat, warning that the decision would lead to "case-by-case preparation and more just action."
Opponents claim that the FCC has hamstrung itself by taking such a hands-off approach to internet regulation. "The court made it very difficult for the FCC to argue that a state law would be in violation of federal regulations because the FCC has repealed most substantive rules," Eric Null, senior policy counsel at New America's Open Technology Institute, said in a Reddit Q&A.
If California and other states win their legal challenges, it not only protects the citizens of those states; it makes it more difficult to maintain a blanket policy. Conversely, it means having dozens of battles (in state congressional chambers and courts) over net neutrality – and creating a potentially confusing spread of rules across the country.
So the ultimate solution, for net neutrality advocates, is still national law. Several US congressmen, including the rep. Anna Eshoo (D-CA) and Sen. Ed Markey (D-MA), used this decision to promote the Save the Internet Act – a bill that would reintroduce the FCC's old net neutrality rules. The Save the Internet Act passed the House of Representatives earlier this year, but it has been voted down in the Senate.
This legal saga is not over yet. It seems Mozilla will appeal this week's decision, although a spokesman said it is still considering the next steps. The FCC may also appeal against the section on state driving. But it does indicate that we are beginning to see the struggle for net neutrality warm up at the local level – whether or not it remains there in the end.