A little over a month ago, the deadline for appealing the D.C. Circuit’s decision in Mozilla v. FCC expired. The Mozilla decision upheld the FCC’s 2017 Restoring Internet Freedom Order (“Order”), which rolled back Obama-era net neutrality regulations to largely deregulate broadband internet service provider (“ISP”) practices. No party sought Supreme Court review of the D.C. Circuit’s decision in Mozilla, ending the two-plus-year challenge of the FCC’s Order. This has now prompted a shift in focus to the states.
A number of states enacted net neutrality laws in the wake of the FCC’s Order. Most of these state laws sought to impose regulations akin to Obama-era net neutrality policies, including, for example, restrictions on certain network management practices such as throttling or paid prioritization. Challenges to these state laws by broadband ISPs were held in abeyance pending the outcome of Mozilla. Now that Mozilla has been resolved, questions have arisen as to whether and how these state challenges will continue, and what the outcomes will be.
California and Vermont are key states in the net neutrality debate, as both jurisdictions agreed to delay the enforcement of their net neutrality laws while Mozilla was pending. Now that Mozilla is resolved, challenges to these laws have resumed.
In California, the U.S. Department of Justice (“DOJ”) and several broadband ISP trade associations filed new complaints and motions for preliminary injunction on August 5, 2020, reigniting litigation that has been dormant since October 2018. California’s law would ban ISPs from blocking, engaging in paid prioritization, throttling, and/or zero-rating Internet traffic. California’s law would also require ISPs to publicly disclose information regarding network management practices.
Also on August 5, 2020, the DOJ and several trade association co-plaintiffs renewed their challenges to Vermont’s net neutrality law. Vermont’s law would prohibit state agencies from contracting with ISPs that do not certify their compliance with net neutrality guidelines.
State officials in both jurisdictions have decided to continue to forego enforcing their net neutrality laws until these renewed motions for preliminary injunctive relief have been resolved.
Four other states—Colorado, Maine, Oregon, and Washington—also have enacted some form of net neutrality law, and a number of other states have adopted net neutrality-minded resolutions or have legislation pending. But, it is currently unclear whether laws in these jurisdictions will be enacted or challenged.
Although the Restoring Internet Freedom Order’s deregulatory regime remains in place, state laws could significantly affect the regulatory landscape if they survive legal challenge. The upcoming election in November could also affect the situation, as changes in leadership in the White House, Congress, and/or the FCC could result in yet another new approach (or the return to an old approach) when it comes to net neutrality policy.
For now, the focus of the net neutrality debate is on the states, and the outcome of pending litigation in California and Vermont will likely shape—or foreclose—state regulation moving forward. California’s net neutrality law, unlike Vermont’s, applies to all ISPs operating in the state, not just those seeking state contracts. The outcome of the litigation is also being closely watched for any broader implications as to the scope of state ability to regulate ISPs or other providers of services classified by the FCC as interstate information services. Thus, regardless of electoral outcomes, federal litigation over the California and Vermont net neutrality laws merits close attention.