On October 1, the U.S. Court of Appeals for the D.C. Circuit issued its decision in Mozilla v. FCC, upholding most of the FCC's Restoring Internet Freedom Order. Importantly, the D.C. Circuit upheld the FCC's decision to reclassify broadband Internet access services as "information services" under Title I of the Communications Act. (For Free State Foundation President Randolph May's reaction to the decision, see yesterday's blog post.)
Significantly, the D.C. Circuit's per curiam opinion vacated the express Preemption Directive contained in paragraphs 194-204 of the Restoring Internet Freedom Order. As is well known, states such as California have passed laws seeking to impose net neutrality regulation (and more), and governors in states such as Montana also have attempted to impose broadband network management restrictions through the use of their states' proprietary powers. So there will be much more to say about the Restoring Internet Freedom Order, state-level broadband services regulation, and preemption in the days ahead. That said, the preemption ruling in in Mozilla v. FCC was essentially anticipated by Professor Daniel Lyons in a February 2019 Perspectives from FSF Scholars. Prof. Lyons is a member of FSF's Board of Academic Advisors. For a perceptive analysis of express preemption and conflict preemption, as well as an advance outlook of what will likely follow the now-released decision by the D.C. Circuit, check out Prof. Lyons' paper, "Express and Conflict Preemption of State Net Neutrality Efforts."
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