Rehearing Requested in Ninth Circuit on California's Net Neutrality Law

On February 11, a group of broadband Internet service providers (ISPs) filed a petition with the Ninth Circuit Court of Appeals, requesting a rehearing en banc of the court panel's January 2021 decision in ACA Connects v. Bonta. The panel upheld California's law imposing public utility regulation on broadband Internet service providers operating in that state.  

In their petition for rehearing, the ISPs argue that the panel decision wrongly characterized the D.C. Circuit's decision as holding that the FCC's Restoring Internet Freedom Order "surrendered" or "abandon[ed]" its statutory authority over broadband – and thereby eliminated the order's conflict preemptive power. As the petition points out, the D.C. Circuit expressly stated in Mozilla that the Commission "can invoke conflict preemption" when "a practice actually undermines" the order.

 

Additionally, the ISPs' argue that the panel decision's conclusion that California's law merely regulates intrastate communications that touch on interstate communications is in conflict with circuit court precedents. According to the ISPs, the Ninth Circuit as well as other circuits have recognized that Internet access is jurisdictionally interstate and that a state's authority over intrastate communications does not encompass regulation of facilities providing both intrastate and interstate service in conflict with federal law. 

 

In a press release on January 28 of this year, Free State Foundation President Randolph May responded to the news of the Ninth Circuit panel's decision in Bonta. For a legal critique of California's law imposing public utility regulation on Internet access services, see Prof. Daniel Lyons' Perspectives from FSF Scholars paper, "Day of Reckoning Approaches for California Net Neutrality Law."