Today, the D.C. Circuit Court of Appeals upheld in part the Federal Communications Commission’s December 2017 Restoring Internet Freedom Order in the case, Mozilla v. FCC. Public Knowledge filed as a petitioner opposing the FCC’s abandonment of its own net neutrality rules. While the FCC’s classification decision was narrowly upheld, the court also ruled that the FCC cannot prevent states from enacting their own net neutrality laws or other broadband regulations.
The net neutrality rules created by the FCC’s 2015 Open Internet Order prevented broadband providers from blocking websites, throttling web traffic, or creating “fast lanes” only for those able to pay for prioritization. Millions of Americans expressed support for these rules by submitting comments with the FCC, and more than 80 percent of Americans consistently say they support restoring the protections the FCC adopted in the 2015 Open Internet Order.
The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:
“We are gratified that the Court agreed with Public Knowledge and other petitioners on the matter of preemption. As we argued, once the Commission decided not to regulate broadband, it lost the ability to preempt states from doing so. The Commission’s choice to give up oversight of broadband means that states now have the clear authority to step in to protect consumers and promote competition where the FCC is unwilling to do so.
“The Court’s decision leaves states with a clear path forward to enact state net neutrality laws to protect internet users and provide certainty for participants in the digital economy. States should move expeditiously to protect consumers where the FCC has refused to do so.
“In deciding whether the FCC’s Order was permissible regarding the classification of broadband, the Court applied a highly deferential standard and found that the Commission narrowly satisfied its burden — noting at one point that the Commission ‘barely survives arbitrary and capricious review,’ and that the Commission ‘failed to provide any meaningful analysis’ regarding how existing law will protect consumers without the agency’s net neutrality protections. However, for the moment, broadband remains classified as an information service — though the Commission must reexamine the effects its choice will have on public safety, universal service, and access to utility poles, which is important for competition. This provides a further opportunity for the public to show how the Commission’s approach is incompatible with these important policies.
“It is disappointing that the court’s decision leaves the American people without national rules protecting them against broadband providers blocking, throttling, or discriminating against certain types of internet traffic. While states should move quickly to enact net neutrality consumer protections, Congress should also respond to the overwhelming demand for strong net neutrality protections by passing the Save the Internet Act to provide certainty to all internet users across the country. The Save the Internet Act has already passed the House of Representatives, and in 2018 a bipartisan majority of the U.S. Senate approved a Congressional Review Act resolution to reinstate the FCC’s 2015 net neutrality protections.
“Polling shows that the American people support this action, regardless of party. Only in Washington do we see a few policymakers at the FCC and in Congress acting in the interest of a handful of powerful broadband providers. This decision should spark the public to demand action to pass strong net neutrality laws now.”
You may view our intervenors’ brief for more details on why Public Knowledge strongly opposed the FCC’s net neutrality repeal. For more information on why we went to court, please view our recent blog post, “Broadband Providers Are Quietly Taking Advantage of an Internet Without Net Neutrality Protections.”
Members of the media may contact Communications Director Shiva Stella with inquiries, interview requests, or to join the Public Knowledge press list at shiva@publicknowledge.org or 405-249-9435.