The Federal Communications Commission’s 2017 repeal of net neutrality protections was upheld by an appeals court today, but the judges presiding over the case ruled that states can create their own rules in place of the scrapped regulation.

Net neutrality is one of the most hot-button issues in internet policy-making.

The term, which was coined by a Columbia Law School professor in 2007, describes regulation for preventing internet providers from prioritizing certain web traffic over others. That means providers may not block or slow down users’ access to specific services nor charge extra for it.

In 2017, under current Chairman Ajit Pai (pictured), the FCC voted to scrap net neutrality policies instituted by his predecessor Tom Wheeler two years prior. The change went into effect in the middle of 2018 and the legal battle over net neutrality has been going on ever since. 

The D.C. Circuit Court of Appeals decided to uphold the repeal this morning after a 2-1 vote. However, it wasn’t a complete victory for the FCC: The three-judge panel ruled that the agency doesn’t have authority to override states’ net neutrality policies with a blanket block. The FCC may still preempt state laws, the panel wrote, but only on a case-by-case basis and after “fact-intensive inquiries.” 

“The Commission ignored binding precedent by failing to ground its sweeping Preemption Directive — which goes far beyond conflict preemption — in a lawful source of statutory authority,” the judges wrote in the decision. “That failure is fatal.”

In addition to ruling against blanket preemptions, the court sent back parts of the neutrality repeal order to the FCC for clarification and review. The judges took issue with some of the materials the agency provided to justify its decision.

Parties on both sides of the net neutrality legal battle hailed the ruling as a win. “Today’s decision is a victory for consumers, broadband deployment, and the free and open internet,” Pai said in a statement. 

Gigi Sohn, a former FCC senior counselor who opposed the net neutrality appeal, said that “the states are now free to do what the FCC will not — assert authority over the broadband market and protect an open Internet. Broadband providers will inevitably complain about having to comply with a so-called ‘patchwork’ of different state laws, but that is of their own making.”

There’s still a possibility that the states and other parties that opposed the net neutrality repeal will file an appeal. They could ask to bring the case before the D.C. Circuit’s full bench or take it to the Supreme Court. 

Photo: FCC