But the ruling still appeared to offer a lifeline to net neutrality supporters: It overruled an effort by the FCC to block states from adopting open-internet protections of their own, a move that could spur states such as California to act.
The ruling marks the latest legal salvo in a decades-long battle between Internet giants and telecom providers over government’s authority to regulate the Internet.
With the backing of the FCC’s two other Republicans, Pai secured a repeal of the government’s net neutrality rules in 2017. Until then, federal open Internet protections had prohibited providers including AT&T and Verizon from blocking or slowing down access to web content, or charging services such as Netflix and Hulu for faster delivery of their shows.
Pai justified the repeal by arguing that the rules, adopted under former President Barack Obama, crimped telecom investment, stalling broadband build-out nationwide. In its place, the FCC only required broadband providers be transparent about their practices while shifting enforcement to the government’s competition watchdog, the Federal Trade Commission.
The repeal triggered widespread backlash: More than 22 states’ attorneys general banded with other city and state leaders as well as Internet companies, such as Mozilla, the maker of the Firefox web browser, in challenging the FCC’s efforts in court. Larger tech giants including Facebook and Google also filed supportive briefs through their Washington lobbying group, the Internet Association.
State regulators said the FCC had acted in an “arbitrary and capricious” manner, ignoring “substantial record evidence showing that [Internet service] providers have abused and will abuse their gatekeeper roles in ways that harm consumers and threaten public safety.” Tech giants, meanwhile, contended that the FCC had embarked on an “abrupt about-face” in response to the election, choosing to subject AT&T, Verizon and their peers to less regulation based on a fundamental misunderstanding of how the web works.
The battle played out over four hours of oral arguments in February, where the D.C. circuit’s three judges at times seemed skeptical of the FCC. At least two of them harbored specific concerns about the effects of the agency’s repeal on public safety agencies. First responders from cities such as Santa Clara, Calif., had told the court they feared Internet providers could charge them for faster delivery of critical communications during an emergency, adding the FCC never took their arguments to heart.