Today, TechFreedom urges the Ninth Circuit to review en banc a panel decision allowing California’s new net neutrality law to go into effect while a legal challenge against it proceeds. Joining an amicus brief produced by Washington Legal Foundation, TechFreedom challenges both the panel’s opinion and a judge’s separate concurrence.

In its 2018 Restoring Internet Freedom order, the FCC rolled back its 2015 net neutrality order, and returned Broadband Internet Access Service to being a lightly regulated “information service” under Title I of the Communications Act. In response to the 2018 order, California enacted a net neutrality law of its own, which largely mimics the FCC’s overturned 2015 order. Joining WLF, TechFreedom seeks review of a Ninth Circuit panel’s conclusion that the California law is not preempted by the FCC’s 2018 order.

“The FCC’s 2018 order preempts state laws that conflict with it,” said Corbin K. Barthold, TechFreedom’s Director of Appellate Litigation. “The D.C. Circuit said as much in Mozilla v. FCC, an opinion that upholds most of the 2018 order. But the Ninth Circuit simply ignores that part of the D.C. Circuit’s opinion. The Ninth Circuit discusses Mozilla’s rejection of the FCC’s attempt to impose blanket preemption—then stops. Yet Mozilla goes on to make clear that the 2018 order does preempt state laws that in fact conflict with it. The Ninth Circuit failed to undertake the necessary case-by-case analysis of whether a conflict between the 2018 order and the California law exists. Had the court done so, it would have found that the California law, which is in large part simply a revival of the FCC’s 2015 net neutrality rules, directly conflicts with the 2018 order.”

“Making matters worse, a concurring opinion gratuitously denigrated interlocutory appeals,” Barthold continued, discussing the practice of appealing an important trial-court order before other aspects of the case are resolved. “This case is profoundly important to the operation of the Internet across the nation, and the court’s jurisdiction to hear the appeal is not in question. The concurrence’s claim that the case is somehow not worth the court’s time is off the mark, to put it mildly, and it creates another reason for an en banc panel to rehear the case.”

“Even if the states enacted identical net neutrality laws, they’d be interpreted in different ways by different courts,” Barthold concluded. “So if states can set their own net neutrality rules, an incoherent mish-mash of incompatible regulations will be the result. The best way forward for net neutrality is for the rules to be set by Congress at the federal level. If and when that is done, a single, hierarchical federal court system can consider disputes over vague terms, resolve them, and ensure that the country is subject to a single, uniform body of Internet broadband regulation.”


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