The DC Circuit Court of Appeals today upheld the FCC's rollback of net neutrality rules enacted under the Obama administration. But the court found that the FCC was not allowed to prevent states from creating and adopting their own guidelines for an open Internet.
California, for example, has already passed its own net neutrality law but that's still caught up in a court fight with the Justice Department. The FCC can't prevent California from doing that, under the appeals court ruling. But it can take the state to court and challenge the legality of how it defines an open Internet.
In general, an "open Internet" is the principle of allowing anyone to share and access information of their choosing without that info being blocked or interfered with by broadband providers or other entities.
The trouble is that the states, telcos and the FCC all seem to have differing views on how to create, and preserve, such an environment.
Here's the problem for those saying that @FCC could pre-empt state #netneutrality laws - the FCC cannot at the same time abandon its authority to regulate & also tell the states it cannot do so. Exactly what federal law or rule would pre-empt the state law? There isn't one.— Gigi Sohn (@gigibsohn) October 1, 2019
Most in the telecom industry think that paying for different traffic prioritization on a network is a fine idea, but media and content producers worry that practice could lead to an environment where only blockbuster content produced by big corporations has a chance to be seen by the public.
Likewise, first responders worry that overzealous telcos and cablecos would either charge them extra for prioritizing public safety communications above all else during an emergency, or relegate them to best-effort status since their warnings and communications aren't helping advance the cause of telco-media conglomerate dividend checks. Also, first responders worry that telcos might also block certain citizens or businesses from receiving timely alerts that were generated by web-based systems.
Imagine the horror if a new Game of Thrones reboot broadcast was getting the fast-lane treatment online while evacuation or shelter-in-place orders, or warnings about fires, unhealthy air quality, and excessive heat were delayed or just dropped. You don't have to imagine it -- the California Public Utility Commission spelled it out their worries and they were noted on page 95 of the appeals court ruling.
With so many ways a telco's lust for profits could imperil the public, the state of California passed its own law prohibiting ISPs from blocking and throttling data. The California law also took aim at paid interconnection deals and "zero-rating" policies that exempt some traffic from data caps and other usage-based data policies.
The telcos and cablecos that own or have deals with media companies did not like being told they're not allowed to selectively charge for carrying certain kinds of data traffic. The Justice Department sued California because it saw the move as an attempt to regulate interstate commerce and a devious plot to subvert the federal government’s deregulation efforts. The government's deregulation efforts, it should be noted, are being handled by a phone company lawyer.
In the short term, the FCC will need to decide if it's going to sue every state that wants to take the step of declaring its own open Internet rules. The appeals court's mixed verdict strikes down the government's ability to provide overarching rules on net neutrality, leaving the telcos, cablecos and lobbyists to direct their attention and political pressure to states and local municipalities.
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