Telecom Decision – Preemption – Internet Trade Groups Seek Ninth Circuit Rehearing on California’s Net-Neutrality Rules

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).

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Telecom Decision – D.C. Circuit Upholds FCC Antenna Rule Aimed at Promoting Wireless Broadband

Expanding the availability of broadband internet service is among the hottest telecommunications policy topics of the day, especially as the federal and state governments funnel billions of dollars toward more deployment and higher speeds.  Last week the D.C. Circuit upheld an FCC rule aimed at that goal, which allows commercial-grade wireless internet antennas in residential areas, a move sought by wireless internet providers.

As technology has changed over time, the FCC has adopted and amended its rules that allow antennas to be placed on private dwellings.  The original 1996 regulation allowed for installation of antennas on private property to receive services like satellite and cable television, and  preempted state and local restrictions.  A 2004 amendment allowed such antennas to serve multiple customers in a single location, provided the antennas were not used primarily as “hubs for the distribution of service.”  And in 2021, the FCC amended the rule to allow such antennas to be used as hubs for the distribution of service, paving the way for commercial-grade equipment for, among other things, wireless internet service.  Children’s Health Defense (CHD) and others appealed, concerned about the health effects of such antennas on nearby residents with radiofrequency sensitivity.  The court’s decision, however, deals mainly with fine legal points of rejecting CHD’s challenges.  Children’s Health Defense v. FCC, No. 21-1075 (D.C. Cir. Feb. 11, 2022).

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Telecom Preemption – Ninth Circuit Upholds California Net-Neutrality Law

The Ninth Circuit Court of Appeals has issued a much-anticipated decision on California’s state “net-neutrality” law, which reimposes the net-neutrality requirements the FCC removed back in 2018.  ACA Connects v. Bonta, No. 21-15430 (9th Cir., Jan. 28, 20222).  The California law is viewed as a template for other states interested in that sort of legislation, and this case served as the lead trial balloon as industry associations challenged the statute on preemption grounds.

As quick background, in 2015 the FCC established net-neutrality rules that prohibited broadband internet service providers from blocking access to websites, slowing certain customers’ internet access (“throttling”), or prioritizing access to some websites over others.  But in 2018 the FCC reversed itself and removed those rules (relying instead on a “transparency” requirement) 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 of that Act.  The purpose in switching to Title I was to subject broadband internet service to only the light-touch regulation that applies to Title I services.  The FCC also expressly preempted state laws that were inconsistent with its deregulatory approach, or that would effectively reimpose the net-neutrality rules it repealed.  The D.C. Circuit upheld the FCC’s reclassification of broadband internet service in 2019, but overturned the express preemption mandate.  Mozilla v. FCC, 940 F.3d 1 (D.C. Cir. 2019).  It left open the question whether, after the FCC’s decision, state net-neutrality requirements could be defeated by other types of preemption.

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Preemption of State Broadband Regulation – New York and California Federal Courts Diverge

How a communications service is classified has a critical impact on how (or whether) it can be regulated.  That has been a critical issue with respect to internet access service, where the FCC has vacillated between defining it as a “telecommunications service” (and thus potentially subjecting it to common carrier regulation under Title II of the federal Communications Act) or as an “information service” (thus subjecting it to very limited potential FCC regulation under Title I of that Act).  After classifying broadband internet access service (BIAS) as a “telecommunications service” in 2015 and imposing “net neutrality” requirements in BIAS providers, the FCC changed course in 2018 and removed those rules, finding they were detrimental to broadband investment, innovation, and availability and that BIAS should instead be classified as an “information service.  Many states then considered how to react to the FCC’s 2018 Order.  Some considered new statutes that ultimately did not pass, some directed agencies to look into the topic and report back, some used executive orders to require broadband providers contracting with the state to follow net neutrality principles, and some passed specific statutes.

The two most far-reaching statutes, from California and New York, have been challenged in federal court by industry associations arguing both field preemption and conflict preemption.  The California court denied a preliminary injunction of the law there (SB-822), which reimposed the same net neutrality requirements the FCC removed in 2018.  American Cable Ass’n v. Becerra, No. 18-cv-2684 (E.D. Cal., Feb. 23, 2021) (oral ruling).  That decision is on appeal at the Ninth Circuit, where it has been fully briefed (No. 21-15430).  Meanwhile, last Friday the New York court granted a preliminary injunction against a New York law (referred to as the ABA) that requires BIAS providers to offer a $15 broadband internet service plan to qualifying low-income customers.  New York State Telecomms. Ass’n v. James, No. 21-cv-02389 (E.D.N.Y., June 11, 2021).  That ruling may well be taken up to the Second Circuit.  Although the two states’ laws are different, there is extensive overlap in the arguments in the cases, and it is interesting to compare how differently the two courts addressed them.

Field Preemption.  BIAS is an interstate service, as it provides users with access to all internet endpoints, which could be anywhere in the world.  In both California and New York, the industry associations argued that 47 U.S.C. § 152(a) gives the FCC exclusive jurisdiction to regulate the provision of interstate communications services, and that this exclusive jurisdiction preempts states from regulating in that field.  They also relied on caselaw stating that the FCC has exclusive or plenary authority over interstate communication services, and distinguishing that from the power left to the states over intrastate communications services.  California and New York responded by arguing that Section 152(a) merely discusses FCC authority to regulate interstate services, without clearly excluding the states.  They also contended that the federal Communications Act excludes some interstate communications services, such as information services, from FCC authority, and argued that this means Congress did not give the FCC exclusive power in the field of interstate communications services.

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The Internet Can Help When It Comes To The Coronavirus

Modern life of planes, trains and automobiles brings people together in close physical proximity like never before. Once upon a time, and actually not that long ago in human history, most people never saw anyone else outside of their own village or tribe. Those days are gone, and now we frequently are exposed to people from other cities, states, and countries. That is all well and good for the most part in terms of business and pleasure, except, of course, when it comes to the transmission of communicable diseases.

Just a couple months ago, most Americans had not even heard of the coronavirus which began in China and then started to spread. Now we are bombarded 24/7 with news, facts and fiction about the virus on television, radio, news sites, social media, podcasts and in everyday conversation. We are told that the coronavirus is highly contagious, is spreading exponentially, is a pandemic, could be with us for quite some time, and poses grave health dangers for at risk segments of populations. Continue reading “The Internet Can Help When It Comes To The Coronavirus”

What To Do About CDA Section 230 And ISP Immunity?

Section 230 of the Communications Decency Act (CDA) became law long ago when it comes to internet time, way back in the 1990s. The main thrust of the CDA was an effort by Congress to regulate indecent content posted online. Section 230 was included within the CDA to provide general immunity to Internet service providers with respect to third-party content posted on their sites. While the indecency regulatory aspect of the CDA was struck down by the United States Supreme Court as violating the First Amendment, Section 230 survives to this day and has been the critical legal backbone that has allowed a good part of the Internet to flourish, especially social media. Continue reading “What To Do About CDA Section 230 And ISP Immunity?”

Internet Companies Must Take Down Anti-Government Content in Vietnam

Question: How free is the internet? Answer: Less than free in certain countries. Further answer: And becoming even less free in other countries — witness Vietnam, discussed briefly below.

At the start of this month, a law went into effect in Vietnam that mandates removal of online content considered offensive to the Vietnamese government. According to SoyaCincau.com, the law was put on the books “under the pretenses” of Cybersecurity, but what it actually does is require the takedown of content deemed “toxic” by the government.

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Internet Controls — Thwarting Terrorism or Silencing Dissent?

When the internet exploded beyond the early confines of US military and academic communications in the late-1990s, the US Congress believed that the internet should grow and flourish relatively unfettered by potential litigation and government regulation. This was reflected in Section 230 of the Communications Decency Act, which generally provides that internet service providers are not liable for content posted by third parties on their websites.

However, the pendulum may be swinging in the other direction in the US, as there have been concerns about false information posted online by foreign interests that has been intended to influence elections. There also has been worry about the ability of terrorists and other bad actors to organize and develop plans of harm and destruction by utilizing the internet to further those negative pursuits.

Other countries share the foregoing worries. And there have been some consequent tightening controls on the internet. Of course, there is a balance to be struck. On the one hand, there is a merit to seeking to prevent harm by terrorists. On the other hand, internet restrictions should not be implemented to thwart valid free speech, dissent and organization while seeking improperly to consolidate governmental societal control. Continue reading “Internet Controls — Thwarting Terrorism or Silencing Dissent?”

Tech Acumen: Many Companies Falling Behind

Corporate America and companies around the globe are spending vast amounts of money trying to keep up with all sorts of threats in this new digital age. So, how are companies really doing?

Unfortunately, not so well. Indeed, according to PwC’s 2017 Digital IQ Survey, as reported by PR Daily, barely more than half of IT executives from the US and 52 other countries reported that their companies have a “strong digital IQ.” This is down from 67 percent so reporting in 2016, and 66 percent in 2015. Continue reading “Tech Acumen: Many Companies Falling Behind”

Breaking Out of the Social Media Loop

Every single day, billions of people spend countless seconds, minutes, and hours on social media. Why?

This occurs in part because it is the business of social media companies to do their best to hold you captive. They want their sites to be “sticky,” so that you spend your time (and ultimately your money) there.

Thus, at bottom, as businesses that have as their appropriate mission the duty to maximize profits for shareholders, they compete fiercely for the attention of social media users.

Continue reading “Breaking Out of the Social Media Loop”

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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