Ajit Pai wins (and loses) in court as net neutrality repeal is mostly upheld

(credit: Getty Images | Kagenmi)

A federal appeals court today upheld the Federal Communications Commission's repeal of net neutrality rules but said the FCC cannot preempt all state net neutrality laws.

"We uphold the 2018 Order, with two exceptions," the judges' ruling said. "First, the Court concludes that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission 'repealed or decided to refrain from imposing' in the Order or that is 'more stringent' than the Order." The FCC "ignored binding precedent" when making its preemption order, and "that failure is fatal" to the preemption, judges wrote.

The ruling does not prevent the FCC from trying to preempt state laws on a case-by-case basis. But the FCC can't preempt all state net neutrality laws in one fell swoop, judges ruled. Each preemption of a state law must involve "fact-intensive inquiries," so the FCC would have to conduct a preemption analysis of each one. "Without the facts of any alleged conflict [between state and federal rules] before us, we cannot begin to make a conflict-preemption assessment in this case, let alone a categorical determination that any and all forms of state regulation of intrastate broadband would inevitably conflict with the 2018 Order," judges wrote.

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