A DC Circuit court has made what should seem to be a self-evident claim. Federal agencies so empowered can repeal their own rules. Net Neutrality being one of them.
In a per curiam opinion on behalf of Judges Millett and Wilkins, and Senior Judge Williams, the court concluded that given the broad degree of deference afforded to federal agencies, the FCC’s interpretation of its own statutory authority could withstand legal challenge and that the agency was entitled change course.
The case asked whether the FCC was legally allowed to repeal a rule it created. Net Neutrality. The Government’s effort to federalize command and control of the internet based on ancient telecommunications doctrines. The court’s opinion is that no lawsuit would successfully deny them the right to unmake their own rule. But that the FCC could not then unmake rules at the state level.
If California wanted to pass its own Net Neutrality rules, the FCC couldn’t interfere.
I’m not sure that makes sense and I’m not alone.
While agreeing in regard to the FCC’s right to its rulemaking one Judge on the panel dissented (on the latter point) noting that there’s no market severability to limit the force of the law or the rule to one state.
The enactors of the 2018 Order, though surely no Macbeths, might nonetheless feel a certain kinship, being told that they acted lawfully in rejecting the heavy hand of Title II for the Internet, but that each of the 50 states is free to impose just that. (Many have already enacted such legislation. See, e.g., Cal. S. Comm. on Judiciary, SB 822 Analysis 1 (2018) (explaining that California has expressly “codif[ied] portions of the recently rescinded . . . rules”).) If Internet communications were tidily divided into federal markets and readily severable state markets, this might be no problem. But no modern user of the Internet can believe for a second in such tidy isolation; indeed, the Commission here made an uncontested finding that it would be “impossible” to maintain the regime it had adopted under Title I in the face of inconsistent state regulation. On my colleagues’ view, state policy trumps federal; or, more precisely, the most draconian state policy trumps all else. “The Commission may lawfully decide to free the Internet from Title II,” we say, “It just can’t give its decision any effect in the real world.”
The US Supreme Court would have to make the call on the question if the case was offered and accepted. Jonathan Adler at Reasons notes,
As preemption is an issue that divides the current Supreme Court in some unusual ways, it will be interesting to see whether a petition for certiorari on the preemption question is forthcoming and whether the Supreme Court believes this question is worthy of review.
We’ll be watching.
| Reason
