In several states there is an ongoing battle over whether or how states can regulate broadband internet access service in the wake of the D.C. Circuit's Mozilla v. FCC decision (940 F.3d 1). The California case is leading the pack, and last Friday the leading internet trade associations asked the Ninth Circuit for rehearing en banc of its decision upholding a California statute, SB-822, that imposes the same "net-neutrality" obligations on broadband providers that the FCC revoked. ACA Connects v. Bonta, No. 21-15430 (9th Cir. Jan. 28, 2022).
Background. In 2018, the FCC decided to remove its net-neutrality requirements in order to better promote broadband investment, deployment, and competition, goals toward which federal and state governments today are devoting billions of dollars. While core policy concerns drove its decision, the FCC removed its net-neutrality rules by reclassifying broadband internet service as an "information service" under Title I of the federal Communications Act rather than a "telecommunications service" under Title II, which freed broadband internet service from common carrier-type regulation (and the prior net-neutrality requirements).
In Mozilla, the D.C. Circuit upheld the FCC's deregulatory choice, finding the FCC had "lawfully construed an ambiguous statutory phrase in a way that tallies with its policy judgment, as is its prerogative." 940 F.3d at 26. On the other hand, the court struck down the FCC's "Preemptive Directive," which expressly "preempt[ed] any state or local...
