Last Friday, the Ninth Circuit upheld California’s 2018 net neutrality law in the face of arguments that the law was preempted by FCC action. The court held that the FCC can’t preempt states since it gave up its own regulatory authority over broadband in its 2017 repeal of the federal net neutrality rules.
According to the decision, key is the FCC reclassification of broadband internet service as an information service: “Only the invocation of federal regulatory authority can preempt state regulatory authority…As the D.C. Circuit held in Mozilla, by classifying broadband internet services as information services, the FCC no longer has the authority to regulate in the same manner that it had when these services were classified as telecommunications services.”
By giving up its authority to preempt, it no longer matters if the state law conflicts with the federal policy objectives underlying the reclassification decision. By vacating the regulatory field, the FCC gave the states carte blanche to step in and impose their own net neutrality rules.
The opinion bolsters other states (New York and Vermont) that are defending their own net neutrality laws against active claims of federal preemption.
With this decision, and the impending nomination of net neutrality advocate Gigi Sohn to be the FCC’s fifth commissioner, the prospects for a fulsome and active return of net neutrality regulation are certainly increasing.