DC Circuit Upholds Net Neutrality Repeal, But Not Preemption

The battle over Net Neutrality has been one that has spanned more than a decade and has frequently landed in the lap of the D.C. Circuit Court of Appeals.

Rounds One and Two: Reversal by the D.C. Circuit

In 2010, the DC Circuit reversed the Federal Communication Commission’s “Net Neutrality Principles” as lacking statutory authority.   Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).

After President Obama’s FCC Chairman Genachowski pushed through an “Open Internet Order” codifying the Net Neutrality Principles under the FCC’s general statutory authority but not treating broadband as a common carrier service in 2011, the D.C. Circuit again reversed stating that the FCC cannot impose  common carrier obligations without re-classifying broadband providers as common carriers under Title II of the Communications Act.  Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014 ).

Round Three: Adoption of the Open Internet Order Under Title II

In 2015, FCC Chairman Wheeler got the FCC to adopt a revised Open Internet Order which invoked the FCC’s Title II authority.  This was upheld by the D.C. Circuit in 2017US Telecom Association v FCC, 855 F.3d 381 (D.C. Cir. 2017).

Round Four: Net Neutrality Repeal
Through Restoring Internet Freedom Order

The election of Donald Trump gave Republicans control over the FCC and its new chairman, Ajit Pait, not only moved to repeal the Open Internet Order but also adopted a “Restoring Internet Freedom” Order (“RIF Order“) that for the first time gave the green light to paid prioritization and throttling users so long as it is disclosed.  Despite the fact that the RIF Order expressly preempted state net neutrality rules, the order led state’s to adopt their own net neutrality rules which led to challenges from the Trump administration that the state rules were preempted by the RIF Order.

This month, the D.C. Circuit issued its fourth net neutrality opinion, which mostly affirmed the RIF Order.  Applying the Chevron standard which gives great deference to agencies, the Court concluded was a reasonable policy choice (“we do not ‘inquire as
to whether the agency’s decision is wise as a policy matter; indeed, we are forbidden from substituting our judgment for that of the agency”).

The Court, however, gave net neutrality a lifeline by reversing the preemption portion of the RIF Order finding

the Commission lacked the legal authority to categorically abolish all fifty States’ statutorily conferred authority to regulate intrastate communications. For that reason, we vacate the Preemption Directive.

This opens the door to creeping Net Neutrality on a state-by-state basis.  Of course, Congress could act but nothing will happen under the current political layout as President Trump and the Republicans are opposed to Net Neutrality.