FCC Internet Deregulation Survives Court Challenge [telecom]

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By Scott Feira, John P. Elwood and Peter J. Schildkraut

On October 1, 2019, the US Court of Appeals for the DC Circuit largely upheld the 2018 Restoring Internet Freedom Order, in which the Federal Communications Commission (FCC) classifies internet access as an Information Service under Title I of the Communications Act and adopts a market-based "light touch" policy for governing the internet. The FCC's 2018 Order was a departure from the FCC's 2015 Open Internet Order, which had classified internet access as a Telecommunications Service under Title II of the Communications Act to protect "net neutrality" and thus potentially opened the way for utility-style regulation of internet service providers. The case - Mozilla Corp. v. FCC, No. 18-1051 - was decided in an unsigned per curiam opinion, probably because multiple judges on the panel wrote parts of the 186-page opinion.

The court did vacate part of the 2018 Order that would have barred states from imposing any rule or requirement that the FCC repealed (or decided to refrain from imposing) in the 2018 Order or that is more stringent than the 2018 Order. Taking a broad reading of this result, Judge Stephen F. Williams noted the incongruity in ruling that the FCC "acted lawfully in rejecting the heavy hand of Title II for the Internet, but that each of the 50 states is free to impose just that."