Almost 18 months have passed since the Federal Communications Commission’s 2018 Restoring Internet Freedom Order has come into effect. During this time frame, approximately 30 state legislators and four members of Congress have introduced legislation to enact some form of net neutrality provisions into law.
The 2018 Order is widely known for repealing the FCC’s 2015 Open Internet Order, which set federal regulations to prohibit internet service providers (ISPs) from blocking, throttling, or unfairly prioritizing internet traffic. The legal framework underlying both orders is significant: in 2015, the FCC classified ISPs as “telecommunications services” under Title II of the 1934 Communications Act, and in 2018, it classified them as “information services” under Title I.
This is not a typographic change—Title II classification, which was created in the 1930s to monitor the Bell landline telephone monopoly, could additionally enable the FCC to regulate pricing, interconnection rates, privacy, and other practices potentially extraneous to net neutrality. Meanwhile, Title I classification would grant the FCC far less control.
Like the FCC, Congress has faced some challenges in classifying ISPs under the 1934 Communications Act and 1996 Telecommunications Act frameworks. Although both parties have supported net neutrality principles, Republicans in Congress have generally opposed classifying ISPs as Title II providers, while Democrats have generally supported doing so. State legislatures have faced challenges as well: California, which is one of the only states to have passed a net neutrality law, will soon need to demonstrate in court that it has not violated the Constitution’s interstate commerce clause.
In the absence of federal and state legislation, some stakeholders have looked to the courts to settle the net neutrality debate. Two months after the 2018 Order came into effect, Mozilla, joined by Public Knowledge, the Open Technology Institute, and other advocacy groups, filed a legal challenge in federal court.
THE D.C. CIRCUIT’S DECISION IN MOZILLA V. FCC
Citing the Supreme Court’s precedents in NCTA v. Brand X (2005) and Chevron v. NRDC (1984), the D.C. Circuit ruled on Tuesday that the FCC was within its statutory authority to reclassify broadband internet service from a Title II “telecommunications service” to a Title I “information service.” In other words, the court upheld the 2018 Order’s primary legal framework.
However, the federal appeals court rejected four specific provisions of the 2018 Order. The court said that that the FCC needed to more adequately explain how a Title I classification might affect internet access for public safety workers; pole attachments in broadband deployment; and the eligibility of lower-income consumers to receive Lifeline benefits. Furthermore, the court struck down a fourth provision that would have categorically preempted states from passing net neutrality laws inconsistent with the 2018 Order.
NEXT STEPS FOR NET NEUTRALITY
Now that the D.C. Circuit has decided Mozilla v. FCC, what might follow? First, some states may continue developing or defending their own net neutrality legislation. California, in particular, has an important stake in this case as it prepares to defend its net neutrality law against a Department of Justice lawsuit. Second, Congress may face additional motivation to either reach a bipartisan consensus on the classification of ISPs or to update telecommunications law altogether.
My colleague Tom Wheeler, who chaired the Federal Communications Commission during the adoption of the 2015 Order, hints at both of these outcomes. In an op-ed for The New York Times, he writes that “the future of an open and fair internet is now in the hands of state governments and Congress.”
A third possible outcome is an influx of litigation from multiple sides of the debate. Although the D.C. Circuit ruled against the 2018 Order’s blanket preemption, it has not eliminated the possibility of striking down individual state laws—and any state net neutrality laws are likely to see legal challenges based on interstate commerce or other legal grounds. Finally, the court’s decision in Mozilla v. FCC could still be subject to appeal by either party to the U.S. Supreme Court.
If Congress picks up net neutrality legislation at the start of next year, it would have an opportunity to establish consistent, long-term rules for ISPs, internet companies, and consumers. However, in the absence of federal legislation, these stakeholders might find themselves simultaneously juggling varying FCC regulations, state legislation, industry standards, and multi-layered litigation.
President López Obrador's extension of the term of Supreme Court chief Arturo Zaldívar is part of his strong effort to recentralize power in the Mexican presidency and hollow out the independence and power of other Mexican institutions. His other moves to bend the justice system to his will include a reform that lowered the salary of judges but did not improve the quality of prosecutors and his unwillingness to allow an independent selection of the attorney general, with López Obrador himself retaining the power of appointment. His latest move with the two-year extension of Zaldívar’s term is especially worrisome. Zaldívar is also the president of the powerful Federal Judiciary Council. The council appoints and dismisses judges, sets career advancement rules and disciplines judges. Zaldívar will be setting the council’s and, thus, the whole judiciary’s, agenda and priorities for two years. This allows López Obrador to influence how courts will rule in cases regarding the executive branch, what cases they take up and the legality of new policies. These moves are taking place when the effectiveness of the judiciary in Mexico remains limited and deeply concerning. The attorney general’s office has proven weak, unwilling to take up key cases such as against the suspects in the brazen attack on Mexico City’s security minister, Omar García Harfuch—an event that symbolized the impunity with which Mexican criminal groups operate. Mexico’s justice system showed itself equally meek and disappointing in inadequately investigating the alleged complicity of former Mexican Defense Minister Salvador Cienfuegos and dismissing the case, potentially the most significant case of corruption and criminal collusion charges against a high-ranking Mexican official in two decades. A decade and a half after Mexico initiated its justice system reforms, 95 percent of federal cases still go unpunished. President López Obrador has scored some points, but the already precariously weak rule of law in Mexico, and thus the Mexican people, will suffer.