Ninth Circuit Denies En Banc Rehearing on California's Net Neutrality Law

On April 20, the U.S. Court of Appeals of the Ninth Circuit denied a petition for a rehearing en banc of the January 2022 decision by a 3-judge panel in ACA Connects v. Bonta. In that decision, the Ninth Circuit panel upheld California's 2018 law imposing public utility regulation on broadband Internet access services. The petition of broadband Internet service providers who were seeking an en banc rehearing was the subject of my blog post from February 25 of this year. Among other things, petitioning ISPs argued that the panel decision incorrectly interpreted the FCC's Restoring Internet Freedom Order as an act of surrender or abandonment of the agency's statutory authority over broadband that extinguished the agency's conflict preemptive authority.

The U.S. District Court for the Eastern District of New York reached a completely different conclusion on the issue of the preemptive authority of the Commission under the RIF Order. The District Court's decision in New York State Telecommunications Association v. James is analyzed in my June 2021 Perspectives from FSF Scholars, "Court Halts New York Price Controls on Broadband Internet Services: California's Net Neutrality Law Should Suffer Similar Fate." Here's the paper's key paragraph on this point:

As the District Court rightly recognized, "[t]he FCC’s affirmative decision" in its 2018 Restoring Internet Freedom Order to reclassify broadband Internet as a Title I information service "is different from an abdication of jurisdiction writ large." Pursuant to that affirmative determination, the Commission may still impose regulatory obligations on the service under its Title I ancillary jurisdiction. Drawing on D.C. Circuit precedents, the District Court observed that the Communications Act confers on the Commission "various bases of jurisdiction and various tools to protect the public interest," and the agency has discretion in selecting the basis and corresponding regulatory tools to best accomplish that objective. Thus, the court wrote that choosing Title I "does not tender jurisdiction to the states to regulate interstate broadband providers as common carriers." Instead, the Commission "cement[ed] its long-standing policy choice concerning the propriety of imposing common-carrier rate regulations upon broadband internet service." 

The District Court's decision in James is now on appeal to the Second Circuit, as I discuss in a January 2022 Perspectives.

 

Getting back to ACA Connects v. Bonta: The Ninth Circuit's April 20 order likely will be followed by a petition for certiorari to the U.S. Supreme Court. Expect to hear more from Free State Foundation scholars as the case involving California's broadband Internet regulation law continues.