A federal appeals court on Friday ruled that California’s net neutrality law can remain in place, upholding a lower court decision. California’s 2018 law is the toughest in the country, and was signed into law a year after the Federal Communications Commission (FCC) repealed the federal Open Internet Order. That 2015 order put into place strict net neutrality rules barring internet providers from blocking or throttling legal apps and websites. It also banned prioritization of paid content by ISPs.
California’s law also bars throttling and speed lanes, and not long after the law was passed, the Department of Justice under former President Trump sued the state, arguing that the law was pre-empted by the FCC’s 2017 repeal of the federal law. That lawsuit and other legal challenges prevented the California law from taking effect, but last year the DOJ dropped its lawsuit.
Industry groups, including wireless trade association CTIA, and internet providers AT&T, Verizon, and Comcast also sued to block the California law from taking effect, but a district court judge rejected their challenge, which argued that the FCC decision should preempt the state law.
On Friday, the Ninth Circuit Court of Appeals voted 3-0 to uphold the lower court ruling, saying the FCC “no longer has the authority” to regulate broadband internet services since the agency had reclassified them as information services, rather than telecommunications services. “The agency, therefore, cannot preempt state action,” the court wrote in its ruling, adding that the power to control access could potentially “open the door for anticompetitive, discriminatory behavior that could disadvantage important segments of society.”
The industry groups said in a statement Friday that the “piecemeal approach” to the issue “is untenable, and Congress should codify national rules for an open Internet once and for all.”
At the moment, the FCC can’t reinstate net neutrality at the federal level, because it doesn’t have a majority; it has four members, two Democrats and two Republicans. Gigi Sohn, President Biden’s nominee to replace former FCC chairman Ajit Pai, is still awaiting Senate approval.