The Federal Communications Commission’s Restoring Internet Freedom Order (RIFO), which determined that broadband internet access services (BIAS) are an information service under Title I of the Communications Act of 1934, was upheld by the United States Court of Appeals for the Sixth Circuit (the Court) on October 1, 2019, in the case of Mozilla v. The Federal Communications Commission (FCC).

The Court ruled that the FCC had exercised appropriate regulatory authority in issuing the RIFO, which overturned the 2015 Open Internet Order (OIO), in which the FCC had determined that BIAS should be subject to the common carrier provisions of Title II of the Communications Act.  The Court used the precedent of the Chevron case, under which deference is given to regulatory agencies in their decision-making process.  In other words, the Trump administration was allowed to undo what the Obama administration did by overturning the light touch regulatory approach to the internet that was first agreed to in 1996 by President Clinton and a Republican Congress.  The Court also held that mobile broadband services are private mobile services, rather than a common carriage services regulated under Title II.

The Court agreed that the RIFO transparency rules were appropriate.  They require BIAS providers to notify and inform consumers of their business practices.  Violations of the transparency rules can be reported to the Federal Trade Commission (FTC), while antitrust violations are subject to the jurisdiction of both the FTC and the Department of Justice.

Net neutrality/OIO supporters claimed that the decision was not a victory for RIFO proponents, mostly pointing to the rejection of the FCC’s ability to preempt state laws.  The Court found that the FCC could not preempt intrastate communications, “over which Congress expressly ‘deni[ed]’ the Commission regulatory authority.”  However, the Court also noted that, “If the Commission can explain how a state practice actually undermines the 2018 Order, then it can invoke conflict preemption.  If it cannot make that showing, then presumably the two regulations can co-exist as the Federal Communications Act envisions.”  This does not mean, as some have suggested, that states have been given carte blanche to create whatever laws they feel like enacting to govern the internet.  It means that state or local laws relating to internet governance must be compatible with the RIFO or they will be challenged for failing to comply. 

Free State Foundation Scholar Daniel A. Lyons discussed conflict preemption in his February 5, 2019 paper, “Express and Conflict Preemption of State Net Neutrality Efforts.”  He noted, “Conflict preemption occurs when it is impossible for a party to comply with state and federal law, or when state law interferes with the accomplishment of a federal objective.”  But, “conflict preemption typically requires a finding that the state rule actually conflicts with, or poses an obstacle to, a federal objective.”  In other words, until the RIFO was upheld, there was nothing to enforce in regard to state net neutrality laws.  In 2018, five states, California, New Jersey, Oregon, Vermont, and Washington, enacted legislation or resolutions relating to net neutrality, with California’s law reaching beyond the provisions of the OIO.  In 2019, Colorado and Maine joined these other states, setting the stage for a series of legal challenges against these laws. 

The court also remanded back to the FCC issues surrounding the RIFO’s impact on public safety, pole attachment regulations, and the Lifeline Program, but none of these issues detract from the overall vindication of the RIFO. 

However, just like the Trump administration did something different than the Obama administration, a Biden/Sanders/Warren or whomever administration is highly likely to undo the RIFO (among hundreds of other deregulatory decisions that have saved taxpayers tens of billions of dollars and stimulated economic growth). 

The only way to avoid this back-and-forth over internet regulation is for Congress to reform and revise the Communications Act.  Following the Court’s decision, Rep. Bob Latta (R-Ohio) issued a press release reminding his colleagues and taxpayers that Republicans in Congress have introduced three bills to regulate the internet.  Democrats to date are refusing to work with them in a constructive manner.

It is long past time to put partisan politics aside and provide the telecommunications industry, consumers, and taxpayers with much-needed statutory certainty on how the internet will be regulated now and into the future.