The U.S. Court of Appeals for the DC Circuit (Court) has upheld the FCC’s 2018 Order reclassifying broadband internet access service (BIAS) as an information service under Title I of the Communications Act of 1934, as amended. In 2018, the FCC released an order reclassifying BIAS as an information service and mobile broadband service as a private mobile service thereby reversing its previous 2015 order imposing Title II common carrier regulation on BIAS and mobile broadband service. In its 2018 order, the FCC’s objective was to adopt a market-based, light-touch policy for governing the Internet. Petitioners, who included Internet companies, non-profits, state and local governments, and other entities, brought an action against the FCC raising a host of challenges against the FCC’s 2018 order. While the Court found the FCC’s reclassification of BIAS and mobile broadband service as information services reasonable, it also vacated in part, and remanded in part on distinctive issues.
Specifically, the Court vacated the FCC’s decision of Preemptive Directive, which expressly preempts any state requirement that is more stringent or inconsistent with the FCC’s 2018 Order, for failure to show legal authority. In addition, the Court remanded to the FCC for further review three specific issues: (1) failure to examine the effects of its decisions for public safety; (2) failure to sufficiently explain the impact of reclassification on regulation of pole attachments; and (3) failure to adequately address the effects of broadband reclassification on the Lifeline Program. While the FCC Chairman and Republican Commissioners consider this a win, the Court’s decision to allow states to adopt inconsistent regulation will make it extremely difficult for the FCC to maintain the current regulatory regime, and all but guarantees new litigation. Dozens of states have already introduced open Internet regulations since the FCC repealed net neutrality, and California enacted legislation that is tougher than the FCC’s rules implemented in 2015.