Yesterday, the Federal Communications Commission (“FCC”) circulated a new Net Neutrality Order for consideration at its October meeting. This draft Order on Remand does not mark a change in the FCC’s Net Neutrality policy; rather, it responds to several issues raised by the D.C. Circuit in Mozilla v. FCC, which reviewed the 2017 Restoring Internet Freedom Order.
The draft Order on Remand addresses the points raised by the D.C. Circuit in Mozilla but otherwise affirms the outcome of the Restoring Internet Freedom Order. That Order rolled back Obama-era Net Neutrality regulations and largely deregulated broadband Internet service provider practices.
In Mozilla, the D.C. Circuit vacated the portion of the Restoring Internet Freedom Order that preempted state Net Neutrality regulations and remanded the Order to the FCC for further consideration of the Order’s effect on (1) public safety; (2) the FCC’s ability to regulate pole attachments; and (3) the FCC’s Lifeline Program, which subsidizes low-income consumers’ access to communications technologies, including broadband Internet access service. Earlier this year, the FCC issued a Public Notice seeking comment on these issues, and the draft Order on Remand concludes, based on the record developed, that there is no basis for altering the Restoring Internet Freedom Order.
The draft Order on Remand confirms that the Restoring Internet Freedom Order is the final word on Net Neutrality, at least for now, at the federal level. As discussed in our August post, the focus in the Net Neutrality debate has now shifted largely to the states. On September 24, Vermont state officials agreed to halt the enforcement of the state’s Net Neutrality policies pending the resolution of pending preliminary injunction motions in the challenges to California’s Net Neutrality law. In California, the U.S. Department of Justice and several broadband industry groups have until October 14 to file reply briefs in support of the preliminary injunction motions they filed on August 5. The U.S. District Court for the Eastern District of California has yet to schedule a hearing on these motions.
Of course, the outcome of the November Presidential election also will have an impact on the direction of Net Neutrality policies and FCC policy towards its authority over broadband generally. Republican and Democratic administrations have taken very different approaches to regulation of broadband providers, so it would not be surprising to see these issues re-visited if there is a change in which party controls the FCC.