On Oct 1, a coalition of public interest groups and states' attorneys general lost their appeal in a legal bid to block the FCC's dismantling of federal Net Neutrality protections, accomplished through a mixture of lies and fraud. It was a crushing defeat for Americans and American competitiveness and access to digital life.
But it's not all bad news. In the wake of the FCC's destruction of Net Neutrality, 34 states crafted bills protecting Net Neutrality at the state level and many of these have already passed into state law.
This prompted Republican FCC commissioners and Trump's FCC Chairman Ajit Pai to do a fast reversal: under Obama's FCC, they had argued that the FCC could not dictate telcoms policy to the states (Obama's FCC prohibited states from passing laws that limited cities' ability to create publicly owned municipal networks). The spectacle of states taking measures to regulate the carriers and cable operators who had bought and paid for the GOP Commissioners prompted those "states' rights" advocates to have a change of heart and insist that the federal government alone could dictate telcoms policies.
But in its Oct 1 ruling, the Federal Circuit appeals court told the FCC that it was wrong: where the FCC refused to regulate, states could step in to fill the void.
Now, ISPs have a choice: they can either try to geolocate their discriminatory practices so precisely that they don't inadvertently violate laws in states that have Net Neutrality statutes, or they can simply treat the whole country as though federal Net Neutrality rules were still in effect.
This victory for the telecoms industry may have just actually delivered them into a hell they've tried to avoid for decades: a balkanized regulatory landscape even more restrictive than the one they just escaped. In its repeal, the FCC preempted states from imposing their own net neutrality laws. "No dice," the majority opinion responded. If the US government chooses to abdicate regulatory authority, the judges argued, it can't simultaneously take that authority from states.
"As a practical matter, the ISPs are going to have to abide by net neutrality," argued telecommunications lawyer Gary Resnick at the law firm GrayRobinson, as states begin enforcing their own net-neutrality laws. "If [telcoms] can't do it in half the country, they can't do that anywhere," he added. Abiding by net neutrality rules in California, but not for information sent to Ohio, will prove, to say the least, challenging (see carmakers' adoption of California's stricter fuel efficiency standards nationwide). "The FCC," Resnick argued, "lost."
Net neutrality is alive and well after this week's crushing court defeat [Michael J Coren/Quartz]