Users, advocates, and service providers have been waiting for months to find out whether an appellate court will bless the Federal Communications Commission’s effort to repeal net neutrality protections, and whether the FCC can simultaneously force the states to follow suit. The answer: yes, and no. Bound by its interpretation of Supreme Court precedent, the DC Circuit Court of Appeals has held that the FCC’s repeal wasn’t sufficiently irrational to be struck down (many Internet engineers might disagree) but, having abandoned the field, the FCC can’t prevent states from stepping in to protect their own users.
We’re disappointed. The FCC is supposed to be the expert agency on telecommunications, but in the case of the so-called “Save the Internet Order,” it ignored expertise and issued an order based on a wrong interpretation of the technical realities of the Internet. But we’re very pleased that the court’s ruling gives states a chance to limit the damage.
In 2017, the FCC voted to repeal the 2015 Open Internet Order, issuing in its place the so-called “Restoring Internet Freedom Order.” In doing so, the FCC declared that it would no longer oversee broadband Internet service providers (ISPs) and removed strong net neutrality protections.
Net neutrality is a foundational principle of the Internet. It is the idea that all data online should be treated in a nondiscriminatory way. In other words, the company providing your Internet access shouldn't be able to determine what you see or how you experience the Internet once you are online. Blocking, throttling, and paid prioritization are famous examples of how companies have violated net neutrality in the past.
Americans overwhelmingly support net neutrality, so the FCC’s decision was not a response to consumer demand but rather a giveaway to service providers that had complained, without a shred of evidence, that net neutrality rules would impede broadband investment. That lack of evidence has been a theme of the repeal process. In addition to misrepresenting the economics, the FCC misrepresented how the Internet works, in spite of information given to them by Internet engineers, pioneers, and technologists.
After the FCC’s action in 2017, a number of groups filed a lawsuit arguing that the FCC's repeal of the 2015 Open Internet Order was unsustainable. In particular, in light of the facts listed above and more, the FCC’s action was arbitrary, capricious, and contrary to law [pdf].
The FCC was backed by the largest ISPs—the only ones who stand to gain from the lack of net neutrality protections and oversight. Standing up to the FCC was a large number of public interest groups, local governments, and Internet companies large and small.
On behalf of technologists who helped develop Internet technologies, EFF filed an amicus brief supporting the petitioners. We made clear that the FCC’s ruling was based on an incorrect understanding of how a broadband internet access service (BIAS) work and mischaracterized a number of functions BIAS providers can offer. We also pointed out that the 2017 repeal order completely ignored the negative consequences for speech and innovation that lifting net neutrality protections would have.
In attempting to clear a path for ISPs to avoid complying with net neutrality rules, the FCC also included language attempting to prevent states from enacting their own net neutrality protections. In other words, the FCC issued an order saying that it no longer had authority over ISPs except, apparently, the authority to prevent states from stepping into the vacuum the FCC itself created. That portion of the order, if upheld, could have undermined California’s recently passed net neutrality law.
In February 2019, Court of Appeals for the D.C. Circuit heard oral arguments in this case, Mozilla v FCC. The arguments lasted for four hours, highlighting not just the conditions that existed in 2017 when the order was issued, but also touching on harms that the order itself causes. Those harms included the effects of the FCC’s repeal on public safety. In 2018, Santa Clara County firefighters found their Verizon Internet service throttled during a state emergency, and when they complained, Verizon told them to buy a more expensive plan. Santa Clara County’s lawyer Danielle Goldstein argued in February that the FCC has a duty to ensure public safety before problems like this occur, rather than just receiving complaints after a disaster happens. While the FCC argued that there was no evidence of concrete harms, Goldstein put it clearly, “The burden is not on us to show that someone has already died.”
In short, the D.C. Circuit upheld the FCC’s ability to repeal net neutrality rules but sent it back to the agency to resolve three major issues the FCC failed to address: public safety, pole attachment rights, and the subsidy program Lifeline.
The court found that the FCC’s factually incorrect assessment of the way that the Internet and its related technologies worked was, nonetheless, a “reasonable policy choice.” In other words, whatever outside experts might say about the reality of the Internet, the court had to defer to the FCC ’s alternative interpretation of that reality. This is the end-result of an “expert” agency deciding not to listen to experts.
But the biggest news, at least in the short term, is that the court unequivocally rejected the FCC’s effort to do a favor for the big ISPs and preempt 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 fear that the FCC’s 2017 order stops them from doing so. While there might be other challenges to state laws, there is no FCC ban on them anymore. In particular, California’s S.B. 822—which the state has delayed enforcement of until this case is completely resolved—is in a strong position going forward. In the absence of the FCC standing up for Internet users and in the wake of this decision, other states can and should be following California’s lead.
Finally, the court sent the case back to the FCC to address three issues. On public safety, the court expressed deep concern that the FCC failed to account for the effects of its decision on the life and safety of its citizens.
On pole attachments, the court explained that the FCC’s decision harmed stand-alone broadband providers' ability to get access to the right of way to deploy broadband. This is because the 2018 Order allowed legacy companies like Comcast and Verizon to keep their special federal rights to infrastructure to deploy their services as cable television companies and telephone companies, but fiber broadband companies were out of luck. Prior to the 2015 Open Internet Order that resolved this issue (by declaring all broadband as Title II, thus giving all ISPs equal rights) we witnessed efforts by AT&T to block Google Fiber from deploying in Austin, Texas because they owned the poles. This issue was also raised by dozens of ISPs across the country in opposition to the FCC’s 2018 Order, so it is a good thing the court is requiring the FCC to grapple with this reality.
For the Lifeline program, which many low-income users depend on for communications access, the court notes that the “2018 Order . . . facially disqualifies broadband from inclusion in the Lifeline Program.” In other words, only Title II services are eligible for federal financial support to help low-income users afford communications services and so long as broadband is not a telecom service, low-income users will not receive financial assistance in obtaining access to broadband.
What Happens Now
The FCC must now grapple with the implications of its decisions,, which could result in further litigation. More litigation could continue to prove just how far out on a limb the FCC is going for big ISPs and how much it is leaving the public in the lurch.
Congress also has a responsibility to bring this debate to an end and reflect the super-majority opinion of the public that net neutrality should be the law of the land. The House of Representatives has already done its job with the passage of the Save the Net Act but it remains blocked by the Senate’s inaction, effectively doing the work big ISPs like AT&T, Verizon, and Comcast want. Congress and the states should both be acting to protect the Internet and its users.
EFF will continue to fight for the users and we will continue to fight for laws that are based on how the Internet is built, used, and developing.