As Calif. Net Neutrality Case Ends, Some Look to 2nd Circuit
Open internet supporters cheered ISPs dropping their challenge of California’s net neutrality law. National telecom associations indicated Wednesday they won’t appeal to the Supreme Court after the full 9th U.S. Circuit Court of Appeals refused to rehear their case (see 2204200061). Whether states may regulate broadband might still not be settled. Some opponents of state net neutrality laws said to watch out for the 2nd Circuit to perhaps differ on federal preemption questions.
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California signed the net neutrality law in 2018, but it couldn’t be enforced until March last year due to the litigation. “I’m thrilled that this is finally over,” California state Sen. Scott Wiener (D), the law’s author, told us Thursday. “The idea that ISPs killed net neutrality at the federal level and then took the position that states can’t adopt net neutrality either … was always a ridiculous position.”
Wiener said it’s “still way too early to know” if the state law is working, “but the ISPs have an incentive to comply with the law, and if they don’t, the attorney general can go after them.” Net neutrality supporters “always have to be mindful” about continued litigation on these issues in other places, the senator said.
Plaintiffs and California “hereby stipulate to the dismissal of this action without prejudice,” wrote ACA Connects, CTIA, NCTA, USTelecom and the state in a short filing Wednesday at the U.S. District Court for Eastern California in case 2:18-cv-02684-JAM-DB. The associations said in a statement Thursday, “Broadband providers are united in support of an open internet and committed to delivering the content and services consumers demand as they’ve continued to demonstrate through their marketplace practices.” Seeking a “common framework,” the groups “commit to work with Congress and the FCC to develop a federal approach that resolves these important issues.”
“Following multiple defeats in court, internet service providers have abandoned this effort to block enforcement of California's net neutrality law,” said California Attorney General Rob Bonta (D), a co-author of the net neutrality law when he was an assemblymember. “With this victory, we’ve secured a free and open internet for California's 40 million residents once and for all.”
Vermont’s net neutrality law became enforceable after the U.S. District Court in Burlington continued a stay on the litigation last month. That case remains pending, though it’s on hold until the 2nd Circuit resolves a New York appeal on ISPs’ challenge to the state’s broadband affordability law (see 2204190072). Vermont is in 2nd Circuit territory.
The 2nd Circuit “is likely to be a more favorable environment for the providers’ arguments, given that circuit’s strong case law on field preemption,” emailed former FCC general counsel Tom Johnson of Wiley, which represents the U.S. Chamber of Commerce as amicus curiae in the New York case. “If that court reaches a different result … it could set the stage for the Supreme Court to resolve these preemption issues on a nationwide basis.” The 9th Circuit case “has limited precedential value since it was a review of a preliminary injunction order,” Johnson said. “That posture also made the prospect of Supreme Court review in this case less likely.”
ISPs might “think they have much better odds” in the 2nd Circuit case, emailed Free State Foundation President Randolph May. “The ISPs’ prevailed in the trial court on their claim that the New York law is preempted by the FCC’s deregulatory policy established in the Restoring Internet Freedom Order,” and have a good chance to win on appeal, he said. The New York law clearly involves setting rates, which “makes it an even easier preemption case for a court to understand than one” about net neutrality, said May: The possible circuit split would increase the odds of Supreme Court review. The continued litigation “highlights why it would be preferable for Congress finally to adopt a law setting forth an appropriate framework for broadband regulation,” he added.
"The win in California was decisive,” said Stanford Law professor Barbara van Schewick, who helped develop California's law. “The ISPs’ preemption arguments were all but thrown out of court in the very first hearing by a federal district court judge,” then the 9th Circuit’s “three-judge panel with two conservatives on it unanimously dismissed the ISPs’ arguments” and not one judge from the full court voted to rehear the case, she said. “That’s a resounding dismissal of their arguments by the first and only court of appeals to rule so far on the federal preemption of state net neutrality laws.”
ISPs “stopped pressing their challenge in California, where they decided to make their stand,” emailed Tejas Narechania, assistant professor-University of California-Berkeley School of Law. It makes sense to keep the Vermont case on ice with a directly relevant 2nd Circuit decision pending, he said: The 9th Circuit ruling and the court’s decision to deny en banc review “may send an important signal” to the other appeals court, which might “hesitate to create a circuit split over this question.”
ISPs dropping their challenge is a "win" for net neutrality, FCC Chairwoman Jessica Rosenworcel tweeted. It’s time for the Senate to seat a fifth FCC commissioner so the federal agency "can restore these important consumer protections for all Americans,” said Public Knowledge Legal Director John Bergmayer.