Internet service providers in California will have to hew to new net neutrality rules, a federal appeals court signaled Wednesday (April 20).
In a one-paragraph dismissal, the 9th U.S. Circuit Court of Appeals denied cable and telco broadband operators‘ appeal of California's net neutrality law.
“The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc,” the court said in a one-paragraph ruling. “The petition for rehearing is DENIED [that all-caps emphasis was the court’s].‘
FCC Chairwoman Jessica Rosenworcel signaled it was time for nationwide net neutrality rules to return. The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law," she tweeted. "This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land."
It will almost certainly take the Senate confirming a fifth commissioner, and third Democrat, for that to happen. Currently the FCC is at a 2-2 political tie and the Republicans are no fans for the FCC's former rules.
“This is hardly a surprise,” said Andrew Schwartzman of the court decision. Schwartzman is senior counselor to the Benton Institute for Broadband and Society, and an attorney schooled in appeals court decisions and net neutrality cases. “The 9th Circuit’s unanimous panel opinion affirming the lower court’s decision allowing the new law to go into effect followed established principles. Its finding that federal law does not preclude California from adopting its own network-neutrality rules is rock solid," Schwartzman said.
California enacted the California Internet Consumer Protection and Net Neutrality Act after the Federal Communications Commission under Republican chairman Ajit Pai eliminated the federal rules against blocking, throttling and anti-competitive paid prioritization of internet access.
Also: California Net Neutrality Victory Draws Crowd
ACA Connects, NCTA–The Internet & Television Association, US Telecom and CTIA, representing cable, telco and wireless ISPs, had asked the 9th Circuit to overturn a U.S. District Court‘s decision not to grant a preliminary injunction against the law. But the three-judge 9th Circuit panel (Judges Mary M. Schroeder, J. Clifford Wallace and Danielle J. Forrest) — one of the most liberal circuits in the federal appeals court system — instead upheld the lower court.
The panel agreed with the district court that the FCC lacked the authority to pre-empt the state law because in reclassifying internet access as an information service under Title I of the Communications Act, the FCC no longer had the authority to regulate the way it did when it was considered a Title II telecommunications service.
It also pointed to the U.S. Court of Appeals for the D.C. Circuit upholding the FCC reclassification but striking down the accompanying order asserting preemption of state net neutrality rules.
The Trump Administration had challenged the California law, but the Biden DOJ withdrew that challenge last year.
The California law was passed in 2018, but its implementation was stayed pending the ultimate legal determination on the FCC's Restoring Internet Freedom Order eliminating the rules — the federal appeals court upheld the majority of the decision (Oct. 1, 2019) — as well as of various motions in the California district court. ■
