WASHINGTON D.C. — Today, the Court of Appeals for the D.C. Circuit upheld the FCC’s Restoring Internet Freedom Order (RIFO) issued by the Federal Communications Commission in 2017—with four exceptions. The court, applying the deferential standard of Chevron, accepted the FCC’s rejection of claims of broad authority to regulate broadband services — and, implicitly, other Internet services — made by the FCC in its 2015 Open Internet Order as the basis for net neutrality rules. But the majority rejected the FCC’s broad assertion of “conflict preemption” of state laws, insisting that whether state net neutrality laws conflict with the RIFO will have to be litigated case-by-case. The court also ordered the FCC to reconsider its analysis of three issues: public safety, pole attachments, and the Lifeline Universal Service program. The FCC is likely to appeal.
TechFreedom President Berin Szóka issued the following statement:
Today’s decision vindicates the RIFO, but Chevron deference to the Republican FCC’s interpretation will likely be tomorrow’s Chevron deference to the next Democratic FCC’s interpretation. So this issue will remain a political football for the foreseeable future, unless and until Congress finally writes into statute the open Internet principles that virtually all parties have agreed on since 2004. Codifying clear but narrow statutory authority for the FCC as uniform national standard is the only way to protect the open Internet from meddling by either broadband providers or politicians — and also end litigation about divergent state-level standards.
This decade-long fight has always been mostly about political theatre, and now, that melodrama will shift to litigation over state net neutrality laws. Today’s decision does not mean such laws will be upheld — merely that they will have to be litigated state-by-state. That litigation will probably start with California’s law, which was put on hold pending this decision. So expect a burst of excitement from the same activists who’ve cashed in on this issue for the last decade, but it remains highly unlikely that any state net neutrality law will be upheld.
The good news for everyone is that upholding the FCC’s narrow reading of its statutory powers will make it hard, if not impossible, for the FCC to claim authority to punish social media companies for supposed anti-conservative bias. Why would any Democrat have wanted the Trump administration to have broad powers to regulate Internet services?
See our other work on net neutrality, including:
- Our petition for certiorari and other major filings in this case
- Our amicus brief in pending litigation over the FCC’s 2017 Restoring Internet Freedom Order
- Tech Policy Podcast #172: The Future of Internet Regulation (w/ FCC Chairman Ajit Pai)
- Our statement on the need for a legislative compromise over net neutrality
- Our statement on the D.C. Circuit’s denial of rehearing.
- Our statement on our appeal over the DC Circuit’s decision upholding Title II reclassification
A summary of our opening brief challenging the FCC’s order