November 2019 587 C&RL News

Ellen Satterwhite is fellow in ALA’s Public Policy and 
Advocacy Office, email: esatterwhite@glenechogroup.
com

W a s h i n g t o n  H o t l i n eEllen Satterwhite

The fight for network neutrality 
continues, despite disappointing 
court ruling
On October 1, 2019, a three-judge pan-
el of the U.S. Court of Appeals for the 
D.C. Circuit delivered a long-awaited and 
complex ruling on whether the Federal 
Communications Commission (FCC) had 
the authority to eliminate Obama-era net-
work neutrality protections that required 
all Internet traffic to be treated equally 
and prohibited blocking or prioritizing 
traffic in any way. The issue hinges in 
part on the reclassification of broadband 
as a telecommunications service, which 
would have made Internet service pro-
viders subject to stricter regulations. The 
judges ruled in favor of the FCC, saying 
it does have the authority to determine 
how the Internet is regulated (or not, in 
this case). At the same time, the court also 
determined the FCC still has work to do, 
remanding parts of the order back for fur-
ther proceedings and, most importantly, 
rejecting the FCC’s attempts to prevent 
states from passing their own net neutral-
ity rules. 

Far from resolving the issue, the court 
effectively forced net neutrality back to the 
FCC for further proceedings (which may 
yet result in its so-called “Restoring Internet 
Freedom Order” being reversed or vacated) 
and legitimized options for protecting net 
neutrality in the states. So far, 30 states have 
proposed or enacted legislation to protect 
net neutrality.

Consumer groups, state attorneys general, 
and other interested parties like ALA will be 
parsing and considering the implications of 

the D.C. Court’s ruling for some time. But in 
the meantime, what does this mean? 

First, either side may appeal the decision 
in the courts. The D.C. Circuit court rejected 
some of the FCC’s key arguments, giving 
consumer advocates a foothold to appeal 
to a higher authority. But the judges did 
indicate they felt bound by a Supreme Court 
precedent, which showed deference to the 
FCC’s decision. On the other hand, broad-
band providers may be worried about the 
part of the decision that keeps the FCC from 
preempting certain state broadband rules. 

Next, many states may continue to work at 
addressing net neutrality with their own rules. 
According to the court’s decision, to preempt 
those state laws, the FCC would need to actu-
ally have rules on the books about broadband 
that conflict with state laws—and it does not 
have any yet. California and New York, in 
particular, seem poised to test the FCC here. 

Other federal agencies may be implicated. 
In that case, the FCC argued that antitrust law 
and consumer protection agencies like the 
Federal Trade Commission could take over for 
the FCC in ensuring that broadband consum-
ers were protected. And the FCC will prob-
ably need to open up new proceedings to 
address the questions the court found lacking. 

Finally, Congress is likely to get in on 
the act. There is broad consensus on both 
sides that Congress should act to address 
net neutrality. The House has already 
passed the “Save the Internet Act,” and the 
Senate could consider it very soon. ALA 
will continue to be on the frontlines for 
our patrons and our communities. What-
ever the next steps, one thing is clear: in 
the words of ALA President Wanda Brown, 
“ALA and the nearly 120,000 libraries across 
the country will not stop until we have re-
stored net neutrality protections—whether 
in the states, Congress, or in the courts.” 

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