On October 1, 2019, a federal court released its decision in Mozilla Corp. v. Federal Communications Commission, a case challenging the Federal Communications Commission’s (FCC’s) 2018 order repealing net neutrality. While the court looked at several issues around the federal government’s order, it also made a critical conclusion for states: the three-judge panel agreed that states have the right to legislate on issues in the FCC’s 2018 order, including net neutrality.
Why does this matter? After the FCC repealed net neutrality in 2018, more than three dozen states, including Connecticut, introduced legislation supporting net neutrality. Five states – California, Oregon, Vermont, Washington, and Maine – have passed laws seeking to protect net neutrality, and New Jersey passed a resolution supporting it.
But in legal arguments, the FCC claimed it had the right to preempt state net neutrality laws, which raised the specter of federal interference in states that sought to protect residents with net neutrality. In its October decision, the U.S. Court of Appeals for the D.C. Circuit rejected the FCC’s argument. Instead, the court struck down the “preemption directive” portion of the 2018 order, the section that allowed the FCC order to override state and local law.
As the court wrote, “The [Federal Communications] Commission ignored binding precedent by failing to ground its sweeping Preemption Directive—which goes far beyond conflict preemption—in a lawful source of statutory authority. That failure is fatal.”
This has three important ramifications for states like Connecticut:
- States can pass laws to protect net neutrality
- Broadband providers must comply with state laws that protect net neutrality
- States could still face legal challenges to net neutrality laws on preemption grounds, but those challenges could only be based on the particulars of the law, not on an argument for blanket federal preemption
Other states have passed laws to protect net neutrality, and Connecticut can and should be next. While Connecticut’s 2018 net neutrality bill failed in committee because of an obscure procedural move, the legislature is again considering legislation this year that could protect net neutrality here.
As Tom Wheeler, a Brookings Institution visiting fellow and former FCC chairperson wrote, “The future of an open and fair internet is now in the hands of state governments and Congress.”
After all, while the federal court’s ruling was not all positive for the lawsuit challenging the FCC’s order eliminating net neutrality, it was good news for any state hoping to protect residents with net neutrality laws.
Net neutrality is about protecting people of all kinds – every day internet users, small business owners, students, health workers, fire departments, and more – from having internet service providers block, slow down, or charge more based on the content that someone is trying to see or who is trying to see it. That’s a principle every state, including Connecticut, should get behind.