Loyola University of Chicago School of Law, JD 2023
Net neutrality (or network neutrality) is the idea that internet service providers (ISPs), such as Verizon or Comcast, should not be able to block or prioritize different sorts of data. The Ninth Circuit, which is comprised of Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington state, is the largest Court of Appeals in the United States both in population and land mass. Recently, the Ninth Circuit ruled in a case that net neutrality requirements applied to internet service providers in those states. This decision put to test the U.S. Court of Appeals for the District of Columbia’s 2019 decision of Mozilla v. FCC, which ruled that states would be able to create regulations regarding net neutrality.
Policy history of regulating net neutrality
The notion of net neutrality first took off in the early 2000’s with broadband Internet connections becoming more prevalent. Subsequently, in 2007 the FCC enforced a complaint that was brought against Comcast for intentionally slowing down the internet service for certain customers.
After that 2007 complaint, different internet carriers continued to push back against the idea and enforcement of net neutrality, but the notion of protections as it related to the internet continued to gain popularity. Then in 2015, during the Obama Administration, the FCC codified net neutrality regulations by putting into place the advocated protections for consumers, which ultimately prevented internet service providers from blocking or giving preferential treatment to certain network traffic.
Net neutrality was the regulatory standard until 2017, when then President Trump appointed a net neutrality opponent as the FCC chairman. This appointee changed the regulatory classification of the internet and as a result stopped net neutrality at the federal level. Then, Mozilla and others sued the FCC in federal court. In 2019, a decision was reached by the U.S. Court of Appeals in the District of Columbia in the case of Mozilla v. FCC, which ruled that states would be able to create their own rules regarding net neutrality in the absence of federal regulations.
ACA Connects v. Bonta
The issue in ACA Connects v. Bonta was whether legislation passed by California legislation regarding the enforcement of net neutrality was prevented by federal law. On January 28, 2022, the Ninth Circuit issued a decision in the case of ACA Connects v. Bonta, affirming the federal district court’s verdict of denying a preliminary injunction requested by industry trade associations. To this point, the Ninth Circuit held that the 2018 decision from the Federal Communications Commission eliminating federal network neutrality regulation did not prevent states from adopting laws regarding net neutrality. The decisions concluded that the FCC’s deregulatory approach to net neutrality did not preempt California’s regulatory approach.
As a result, this decision allows the state of California to continue to enforce laws regarding net neutrality. Additionally, this ruling also increases the likelihood for other laws in different states to be adopted and potentially permits other forms of regulation for internet access services.
The future of state regulated net neutrality
ACA Connects v. Bonta now leaves California’s net neutrality requirements standing, but the decision will cast a much wider net of implications. Specifically, the Ninth Circuit’s decision encourages (in part) other states to legislate for net neutrality. As a result, it is likely that we will see many states, especially within the large Ninth Circuit make requirements as it relates to net neutrality. In addition, because the Ninth Circuit rejected broad preemption of internet regulation by state governments, legislation regarding the internet access in respect to requirements to serve sparsely populated areas, lower income customers, or mandatory service-quality standards will likely follow. Not only does this open the gate for state based regulation, but the ACA Connects decision will also add pressure to the efforts of the FCC to once again face the issue of net neutrality head-on. Finally, Congress could end up considering enacting federal legislation regarding net neutrality, codifying equal access to the internet into law. To this, market analysts have noted a slow in the investments into network providers, some holding out to see if Congress will legislate for net neutrality.