Net Neutrality Gives Cities Some Flexibility

October 22, 2019 - (3 min read)

You may have seen headlines that a federal court handed a partial victory to advocates for net neutrality recently. But what exactly did the court do, and what does that mean for cities?

Net neutrality requires internet service providers to treat all Internet communications the same and not block, speed up or slow down any content. Net neutrality was federal policy until the Federal Communications Commission’s (FCC) 2018 order striking it down. The National League of Cities (NLC) and U.S. Conference of Mayors (USCM) both opposed the order when it was issued.

Numerous states and local governments challenged the legality of the order. In an October decision on Mozilla Corporation v. FCC, the D.C. Circuit upheld most of the FCC’s 2018 order retreating from net neutrality. That means that the federal government will not mandate that internet service providers abide by net neutrality. However, the court struck down the portion of the order preempting states and local governments from adopting their own net neutrality measures.

The technical legal question in the case was whether broadband Internet is a “telecommunications services” under Title II of the Telecommunications Act of 1934 or an “information services” under Title I. In the 2018 order, the FCC classified broadband Internet as the latter. Title II entails common carrier status, while Title I does not. Notably, Title II “declar[es] . . . unlawful” “any . . . charge, practice, classification or regulation that is unjust or unreasonable.”

The D.C. Circuit held that classifying broadband Internet access as an “information service” is a “‘a reasonable policy choice for the [Commission] to make.’” The court relied on a 2005 Supreme Court decision, National Cable & Telecommunications Association v. Brand X Internet Services, upholding the FCC’s refusal to classify cable broadband as a “telecommunications service.”

The D.C. Circuit likewise upheld the 2018 order’s classification of mobile broadband as a “private” mobile service and not commercial, which is subject to common carrier status.

The states and local governments challenging the order didn’t entirely lose the case. The D.C. Circuit described the 2018 order’s Preemption Directive as “invalidat[ing] all state and local laws that the Commission deems to ‘interfere with federal regulatory objectives’ or that involve ‘any aspect of broadband service . . . address[ed]’ in the Order.” The court concluded the Directive exceeded the FCC’s statutory authority.  The D.C. Circuit also instructed the FCC to “adequately consider” the 2018 order’s impact on public safety, pole-attachment regulation, and the Lifeline Program.

According to the National Conference of State Legislatures, seven states—California, Colorado, Maine, New Jersey, Oregon, Vermont and Washington—have enacted legislation or adopted resolutions regarding net neutrality. The authority of local governments to enact their own net neutrality policies will depend on state policy and whether or not they are preempted by state government.

The State and Local Legal Center, NLC and other state and local organizations will continue to monitor this issue. NLC will host a State and Local Legal Center webinar on Friday, December 6 to explain the facts of the case, how it will impact cities, and what avenues are open for local governments to pursue net neutrality for their residents.


About the Authors: Angelina Panettieri is the Principal Associate for Technology and Communication at the National League of Cities. Follow her on twitter at @AngelinainDC.


lisa_soronen_new_125x150Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.