The Ninth Circuit Opens the Door to Internet Access Regulation at the State Level – Litigation, Mediation and Arbitration

United States: The Ninth Circuit Opens the Door to Regulating Internet Access at the State Level

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On January 28, 2022, the United States Court of Appeals for the Ninth Circuit released a decision upholding a California law that applies “net neutrality” requirements to state internet service providers, affirming a ruling by a federal district court to deny a preliminary injunction. requested by industry trade associations. Net neutrality is a form of regulation that prohibits Internet Service Providers from adopting practices that may impede the flow of information on the Internet. It generally includes obligations not to block traffic, not to discriminate in the transmission of different types of traffic, and to provide customers with information about their services. This decision allows California to continue to enforce its law, increases the likelihood that similar state laws could be passed and enforced, and potentially allows other forms of regulation for Internet access services.

The central issue in the case was whether the California legislation was preempted by federal law. The Ninth Circuit ruled that a 2018 Federal Communications Commission ruling eliminating federal net neutrality regulations did not prevent states from passing similar laws. In coming to this conclusion, the Ninth Circuit relied on a separate case in which the United States Court of Appeals for the District of Columbia Circuit ruled that the FCC’s general assertion that it was ahead of any State net neutrality law could not be accepted because the FCC had denied any general authority to regulate Internet access. The court also rejected arguments that California law conflicts with federal communications law and that the law precludes regulation of Internet access because such access is an interstate service.

And after?

Industry parties to this case may seek further review from the full Ninth Circuit or the Supreme Court. If they don’t request a review or if requests are denied, the case goes to the district court.

The move leaves California’s net neutrality requirements in place, but it could also have broader implications. In particular, the decision encourages other states to adopt their own net neutrality requirements. Additionally, given that the Ninth Circuit rejected broad preemption of state regulation of the Internet, this decision could encourage efforts to adopt other types of regulation, such as the requirement to serve sparsely populated areas. , the obligation to provide an inexpensive service to low-income customers or a mandatory service. quality standards. The move will also add urgency to the FCC’s efforts to reinstate its net neutrality rules and may prompt Congress to consider enacting federal net neutrality legislation, although it does not appear that net neutrality network is a legislative priority at the moment.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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