FCC’s 2018 Repeal of Net Neutrality Upheld by D.C. Circuit

The United States Court of Appeals for the District of Columbia Circuit this morning issued its long-anticipated opinion in the case of Mozilla v. FCC, upholding the Federal Communications Commission’s 2018 In re Restoring Internet Freedom order, which reversed the FCC’s previous 2015 In re Protecting and Promoting the Open Internet order (commonly referred to as the “Net Neutrality Order”). The 146-page opinion was filed per curiam on behalf of the three-judge panel that heard the case. Circuit Judges Millett and Wilkins filed concurring opinions and Senior Circuit Judge Williams filed an opinion concurring in part and dissenting in part. The case was argued before the panel on February 1, 2019. Parties may now seek reconsideration at the D.C. Circuit, or petition the Supreme Court for review.

 In re Restoring Internet Freedom was a big win for large national Internet service providers such as AT&T, Comcast and Verizon and others who chafed at the Net Neutrality Order’s content blocking, throttling and paid prioritization restrictions, and today’s ruling preserves that victory. At the heart of the Court’s opinion is its conclusion that the “Commission permissibly classified broadband Internet access as an ‘information service’ by virtue of the functionalities afforded by DNS and caching.” A legal and policy battle over whether broadband Internet access service is “telecommunications” (subject to stringent regulation) or an “information service” (subject to lighter regulation) has raged for at least a decade at the FCC and in the courts.

 However, even as the Court’s opinion approved the FCC’s “information services” classification, Judge Millett’s concurrence argues that the Court’s ruling on this central issue was dictated by precedent; but “that the result is unhinged from the realties of modern broadband service.” Also clouding the picture is the Court’s vacatur of the FCC’s “Preemption Directive”: “the Commission lacked the legal authority to categorically abolish all fifty States’ statutorily conferred authority to regulate intrastate communications.” The Court also remanded, without vacating, FCC findings on public safety, pole-attachment regulation and the Lifeline Program. More detailed analysis will follow.

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Christopher Van de Verg