DOJ and Broadband Industry Fights Back

Soon after California’s law was passed, the Justice Department and multiple broadband lobbying groups sued the State of California to stop the implementation of the law. Broadband providers also challenged Vermont’s law in court. California and Vermont agreed to delay enforcing their laws until the appellate process ended, which is now getting closer.

Lawsuits against these laws were in part based on the Preemption Directive that the D.C. Circuit struck down, so the lawsuits will likely need to be amended and proceed with slightly different arguments. The D.C. Circuit’s opinion may also make it more difficult to receive a preliminary injunction against the state laws, unless the lawsuits are amended. Therefore, these lawsuits are likely to resume and move forward as soon as the federal case challenging the FCC’s elimination of net neutrality regulations becomes final. The D.C. Circuit’s opinion left open the possibility that state laws could still be struck down through traditional conflict preemption principles, but these will likely be fact intensive inquiries examining each state law in comparison to the FCC regulations. The threat of additional lawsuits has also been cited by lawmakers in other states, such as Maryland, as a reason not to pass their own net neutrality laws until the lawsuits against other states’ net neutrality rules have a chance to play out.

These state issues are all in addition to proposals in the United States Congress, one of which previously passed in the House of Representatives but was not taken up by the Senate. A bipartisan effort in the Senate is underway to craft different net neutrality regulations.

Whether through national legislation, a change in FCC position or state laws and the accompanying lawsuits, the debate regarding net neutrality is not over yet and the year ahead will likely hold many new developments.