A federal appeals court on Tuesday affirmed that the Federal Communications Commission acted lawfully when it scrapped the U.S. government’s net neutrality rules in 2017, but the ruling opened the door for state and local governments to try to introduce their own regulations designed to treat all web traffic equally.

In a nearly 200-page opinion, judges on the District of Columbia Circuit Court of Appeals sided with the FCC and its Republican chairman, Ajit Pai, who was tapped for his position by President Trump. While it said the agency must return to the drawing board on some elements of its repeal, the court upheld the legal underpinnings of the FCC’s work, finding that net neutrality supporters had made “unconvincing” arguments in their efforts to override the FCC’s deregulation of companies such as AT&T, Comcast and Verizon.

In doing so, the ruling still appeared to offer a new lifeline to net neutrality supporters: It overruled a blanket effort by the FCC to block states from adopting open-internet protections of their own. The FCC preempted those regulations as part of its prior repeal, but the court determined that the telecom agency had overstepped its authority. Lawmakers in California adopted their own net neutrality rules last year only to be met by swift opposition from the Justice Department, which sued to stop their implementation citing the FCC’s legal blockade.

In a statement, Pai on Tuesday heralded the court’s mixed decision as a victory. “The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the internet imposed by the prior administration,” he said.

But net neutrality advocates indicated that their fight isn’t finished. “When the FCC rolled back net neutrality, it was on the wrong side of the American people, the wrong side of history,” said FCC Commissioner Jessica Rosenworcel, a Democrat who voted against the repeal. “Today we learned in critical respects it was also on the wrong side of the law.”

“What this means is that net neutrality is still going to be a big part of our discussion in this country,” she continued. “There is still a fight to be had, and now it is both at the FCC and at the state and local level.”


Internet giants, telecom providers and consumer advocates have been battling for decades over the government’s authority to regulate the web, and the mixed outcome Tuesday essentially guarantees even more legal wrangling. Under the court’s ruling, the FCC must reconsider some elements of its net neutrality repeal, while considering whether to challenge states that adopt their own open internet rules in the courts.

“Our fight to preserve net neutrality as a fundamental digital right is far from over,” said Amy Keating, the chief legal officer at Mozilla, one of the companies that brought the challenge to the FCC repeal. She added that Mozilla is “considering our next steps in the litigation.”

The thicket of thorny issues could take well past the 2020 election to resolve, experts warned, raising the potential that political changes in Washington could further contribute new twists in telecom’s most intractable debate.

With the backing of the FCC’s two other Republicans, Pai secured a repeal of the government’s net neutrality rules in 2017. Until then, federal open-internet protections had prohibited providers such as AT&T and Verizon from blocking or slowing down access to Web content, or charging services such as Netflix and Hulu for faster delivery of their shows.

Pai justified the repeal by arguing that the rules, adopted under President Barack Obama, crimped telecom investment, stalling broadband development nationwide. In its place, the FCC only required that broadband providers be transparent about their practices while shifting enforcement to the government’s competition watchdog, the Federal Trade Commission.

The repeal triggered widespread backlash: More than 22 states’ attorneys general banded with other city and state leaders as well as internet companies, such as Mozilla, the maker of the Firefox Web browser, in challenging the FCC’s efforts in court. Larger tech giants including Facebook and Google also filed supportive briefs through their Washington lobbying group, the Internet Association.


State regulators said the FCC had acted in an “arbitrary and capricious” manner, ignoring “substantial record evidence showing that (internet service) providers have abused and will abuse their gatekeeper roles in ways that harm consumers and threaten public safety.” Tech giants, meanwhile, contended that the FCC had embarked on an “abrupt about-face” in response to the election, choosing to subject AT&T, Verizon and their peers to less regulation based on a fundamental misunderstanding of how the web works.

The battle played out over four hours of oral arguments in February, when the D.C. circuit’s three judges at times seemed skeptical of the FCC. At least two of them harbored specific concerns about the effects of the agency’s repeal on public safety agencies. First responders from cities such as Santa Clara, California, had told the court they feared internet providers could charge them for faster delivery of critical communications during an emergency, adding that the FCC never took their arguments to heart.

The concerns aired by public-safety officials ultimately found a sympathetic ear at the court, which ordered the FCC on Tuesday to return to the drawing board and reconsider the effects of its net neutrality repeal on police officers, firefighters and other emergency officials. While it upheld the FCC’s ability to scrap the government’s open-internet protections, the judges said the agency hadn’t factored first responders and others, including low-income Americans, into its decision-making process.

“We look forward to addressing on remand the narrow issues that the court identified,” Pai said.


The Washington Post’s Rachel Siegel contributed to this story.

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