Net Neutrality Following the FCC Repeal

The repeal of net neutrality rules under the Obama administration has now been in effect for four months. During this time, states have re-enacted the rules at the state level, urged the federal government to reinstate the rules, and appealed the decision to a D.C. federal court. Net neutrality is the principle that internet service providers—including Verizon, AT&T, Spectrum, and others—should enable access to all content and applications regardless of the source, and without favoring or blocking particular products or websites.

California and Washington are spearheading the charge to maintain these rules. California Gov. Jerry Brown signed SB 822, the nation’s most stringent net neutrality protections in September sparking a legal fight with President Donald Trump’s administration. The suit stems from a clause within the repeal in which the Federal Communications Commission had explicitly prohibited states from enacting their own net neutrality rules in its order.

Washington Gov. Jay Inslee has openly accepted the legal battle from the administration aptly stating, “bring it on,” at a technology conference in the state. Washington re-enacted the rules in February along with Oregon and Vermont. No legal action has been brought against the three states to date.

In May, the U.S. Senate voted to reinstate the rules, but the bill died in the House. Members of Congress attempted this through the Congressional Review Act, which allows Congress to review regulations passed by federal agencies within a certain timeframe.

With a total of 22 state attorneys general, and tech companies such as Mozilla, Facebook, and Alphabet Inc. challenging the repeal of the regulation, the stage is set for a technological federalism battle. Currently, their efforts have led to the D.C. Circuit Court of Appeals in a battle with the Federal Communications Commission. The FCC has asked the court to uphold their vote and practices in repealing the filing stating, “The legal and policy analysis presented in the Order easily fulfills the Commission’s responsibility to explain its repeal of the 2015 order and its decision to restore the prior longstanding approach to broadband classification. Petitioners’ objections to the Order under review are meritless.” Legal scholars further cite the core of the issue as interference with interstate commerce, which is unconstitutional.

The concept of net neutrality seems to have a long, complex legal battle ahead of it. State leaders must be aware of the legal precedents that will be set by the cases, as well as the continued push to pass and maintain net neutrality legislation within their borders.