On October 1, the United States Court of Appeals for the District of Columbia Circuit issued its per curiam decision on the appeal of the FCC’s 2017 net neutrality order, also known as the Restoring Internet Freedom Order. Although the court upheld the Order in large part, it vacated part and remanded part back to the FCC to address three issues in which it found the Order inadequate: “(1) The Order failed to examine the implications of its decisions for public safety; (2) the Order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address Petitioners’ concerns about the effects of broadband reclassification on the Lifeline Program.” The court vacated that part of the Order pre-empting any state or local requirement that “would effectively impose rules or requirements that [the FCC] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that [the FCC] address[ed] in this order.”

The court upheld the FCC’s decisions to restore the classification of broadband Internet access service as a less regulated “information service;” reinstate the private mobile service classification of mobile broadband Internet access service; eliminate the Internet Conduct Standard and the Bright Line Rules; and adopt enhanced transparency requirements that mandated ISPs to disclose information about their practices to consumers, entrepreneurs, and the FCC.

Chairman Pai, alongside Commissioners O’Rielly and Carr, were pleased with the court’s decision to uphold the majority of the Order. Chairman Pai said, “Today’s decision is a victory for consumers, broadband deployment, and the free and open Internet. The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior Administration.” Commissioner O’Rielly said, “It is heartening to see a court get most of the decision correct. … At the same time, vacating the preemption provisions seems to misread precedent and ignores the technology’s structure, which cannot be segmented into intrastate portions. Inevitably, this will lead to Commission case-by-case preemption efforts and more litigation.” Commissioner Carr said, “Today’s decision is a big win for a free and open Internet and for U.S. leadership in 5G.”

Commissioners Rosenworcel said, “Today’s court decision vacates the FCC’s unlawful effort to block states and localities from protecting an open internet for their citizens. From small towns to big cities, from state houses to governors’ executive actions, states and localities have been stepping in because the FCC shirked its duties. In addition, the court took the agency to task for disregarding its duty to consider how its decision threatens public safety, Lifeline service, and broadband infrastructure.”

Commissioner Starks said, “Above all else, today’s decision breathes new life into the fight for an open internet. It confirms that states can continue to step into the void left by this FCC. To that end, it is a validation of those states that have already sought to protect consumers, and a challenge to those that haven’t yet acted to think hard about how to protect their citizens.”

The D.C. Circuit Court of Appeals dropped a long-awaited ruling Tuesday on the FCC’s rollback of the Obama-era net neutrality rules, largely upholding the Republican-led repeal. But the court knocked down the FCC’s attempt to broadly override state efforts to craft their own net neutrality rules. An FCC senior official told reporters the ruling leaves open the possibility of the FCC challenging state laws on a case-by-case basis. Goldstein & Russell partner Kevin Russell, who argued against the FCC’s repeal, said that would be a “difficult task.”

— No one thinks this fight is over, but the next battleground may be in California. Remember: The state passed its own net neutrality rules in 2018 but agreed to hold off on enforcing them while the FCC’s rules faced a legal challenge. California Attorney General Xavier Becerra hailed the D.C. court for rebuffing “the FCC’s effort to preempt state net neutrality laws through regulation,” but his office said it was still evaluating its next steps in light of the federal ruling (which could still be reconsidered by the full complement of D.C. Circuit judges and/or the Supreme Court), according to a dispatch from POLITICO California reporters Jeremy B. White and Katy Murphy. Full Color Future Chair Mignon Clyburn, who as a Democratic FCC commissioner voted to approve the repealed rules, told POLITICO that the ruling will “allow each state to determine its own net neutrality future.” She added, “Any state wishing to protect entrepreneurs should follow the lead of California, Colorado, and Vermont in enacting laws protecting entrepreneurs and people of color with strong net neutrality requirements.”

— Over on the Hill, the ruling renewed calls for federal net neutrality legislation. Rep. Greg Walden, ranking member of the House Energy and Commerce Committee, said Republicans in the chamber want to work on a “serious, bipartisan approach to creating a national standard.” Bipartisan legislation may prove as elusive as ever, though. Sen. Ed Markey (D-Mass.) marked Tuesday’s ruling by pushing his Save the Internet Act, urging Senate Majority Leader Mitch McConnell (R-Ky.) to bring it to a vote. That House-passed measure (H.R. 1644) would restore the Obama-era rules and has proven deeply unpopular with Republicans; McConnell previously declared it “dead on arrival” in the Senate.