Ever since the FCC repealed net neutrality protections in 2017, we’ve been fighting to return as many protections to as many Americans as possible. In 2019, the battles in the courts and Congress both kept those committed to a free and open Internet very busy.
Mozilla v. FCC Takes Center Stage
The court case over the FCC’s 2017 repeal of net neutrality protections bookended 2019. At the very beginning of the year, the Court of Appeals for the D.C. Circuit heard the case of Mozilla v. FCC, in which civil society, local governments, and Internet companies of all sizes took on the FCC and the large ISPs. The former was arguing for protections based on how the Internet really works, the dangers posed to the public without net neutrality, and on behalf of the vast majority of Americans who supported the 2015 Open Internet Order. The latter was arguing in favor of one of the most unpopular decisions in Internet history and for the enrichment of giant companies at the expense of a free and open Internet.
The oral arguments lasted for hours, with the lawyer representing public interest groups pointing out how the FCC was flatly incorrect about how the Internet works. The technical distinctions relied on by the FCC were wrong at best and intentionally dishonest at worst.
Mozilla’s lawyer, Pentelis Michalopoulos, argued that the FCC and ISP argument that net neutrality was protected by the many internet service competitors made no sense. The idea is that companies will act in accordance with net neutrality principals because if they didn’t, people would switch to a provider who does. Except, of course, most Americans have little to no choice in their broadband provider. And, as Michalopoulus argued, history has shown that ISPs have both the incentive and ability to block, throttle, and engage in other net neutrality violations.
22 states and the District of Columbia also joined in suing the FCC, because the so-called restoring Internet Freedom Order also tried to ban states from protecting their residents by enacting their own laws. As the states’ lawyer and many others have been saying for quite a while: the FCC can’t have its cake and eat it too on this. It can’t abdicate its responsibility and then try to dictate that no one else steps into the vacuum it created.
The effects of Verizon throttling Santa Clara County’s firefighters during a state of emergency also made themselves heard. It threw into stark relief how public safety is tied to net neutrality protections. While the FCC argued that there was no evidence of concrete harms, that argument was clearly ridiculous as it is premised on the idea that the FCC should only act once someone has already died not to prevent the shown possibility of death.
Eight months after oral arguments concluded, the court finally delivered its decision. The decision was ultimately mixed. While the majority of the FCC’s order was upheld, the court instructed the agency to hold hearings to address three areas it concluded the FCC had failed to adequately consider: public safety, pole attachment rights, and the subsidy program Lifeline.
In good news for advocates of a free and open Internet, the court also unequivocally rejected the FCC’s attempt to preempt—ban—state net neutrality laws. The court didn’t mince words on preemption, stating that the “Commission ignored binding precedent by failing to ground its sweeping Preemption Directive—which goes far beyond conflict preemption—in a lawful source of statutory authority. That failure is fatal.”
This means that states can pass their own net neutrality laws without the 2017 FCC order standing in their way. While there might be other challenges, they’d be case-by-case challenges and not simply enforcement of a ban. This also means that the FCC’s challenge to California’s sweeping and comprehensive net neutrality law is much weaker than it was before this decision because ISPs and the Department of Justice can no longer rely on the FCC’s unlawful order.
The House Passes the Save the Internet Act, Leaving Net Neutrality in the Hands of the Senate
During the rest of the year, the Save the Internet Act was making its way through Congress.
The Save the Internet Act would make the protections of the 2015 Open Internet Order permanent, giving us the real net neutrality we deserve. In April, the Save the Internet Act passed the House of Representatives by a vote of 232-190, leaving it up to the Senate to follow suit. But, despite net neutrality’s popularity, the Senate hasn’t taken up the bill yet. You can still tell your Senators to vote for the Save the Internet Act.
In the two years since the FCC repealed the 2015 Open Internet Order, the Senate voted to overturn that vote, the House has voted for a bill that would make those protections permanent, and state legislatures and governors have passed laws and signed executive orders with net neutrality protections. All of this happened because super majorities of the public have demanded that their elected officials represent their interests and protect their Internet access. With each win, we have chipped away at the behind the scenes industry lobby led by a small number of large ISPs who wish the public would just go away and let them rent seek over an essential service that many of them hold a monopoly on. But we will never give up and we will continue to fight for your right to a free and open Internet in the courts, in Congress, and in the states.
This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2019.
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