In an October 1st Opinion, the U.S. Court of Appeals for the District of Columbia upheld many of the key provisions of the Commission’s Restoring Internet Freedom Act. That is, the court granted in part and denied in part the petitions for review of several challenging parties. But the net result was the upholding of the order with only two exceptions.
The major loss for the FCC was the Court’s finding that that it lacked the legal authority to issue a Preemption Directive that would have precluded states from imposing any rule or requirement that the Commission repealed or did not impose, or that is more stringent than the order. The Court vacated this portion of the order.
Additionally, the Court remanded three provisions of the Order, finding that the FCC (1) failed to examine the implications of the order on public safety; (2) did not properly explain what effect it will have on the regulation of pole attachments; and (3) did not fully address concerns over possible effects on the Lifeline program.
In opining that the Commission lacks the authority to issue a Preemption Directive that bars “any state or local requirements that are inconsistent with {the Commission’s} deregulatory approach,” the Court may have opened the proverbial can of worms. There are states and municipalities out there that would love to exert their control over the internet, in a far more heavy-handed manner than the FCC’s order.
This finding by the District Court, as well as its decisions to let other portions of the softer deregulatory order stand, may very well precipitate future battles before the U.S. Supreme Court.
