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Seal of the US Courts Ninth Judicial Circuit (Photo: U.S. Ninth Circuit official Twitter page)

U.S. Court of Appeals for the Ninth Circuit Declines to Rehear California Net Neutrality Case

Telecommunications companies mull bringing case to Supreme Court

By Evan Symon, April 21, 2022 4:17 pm

The U.S. Court of Appeals for the Ninth Circuit declined to rehear the case surrounding California’s net neutrality laws on Wednesday, holding the law up while internet service providers (ISPs) run out of options to fight against the law.

The now four year battle over California’s law began in 2018. That year, Senator Scott Weiner (D-San Francisco) wrote Senate Bill 822, also known as the California Internet Consumer Protection and Net Neutrality Act of 2018. SB 822’s language prevents internet providers from blocking the internet or slowing internet speeds if the user was using it lawfully. The bill also prevents companies from blocking user access to devices, would not be able to institute ‘premium’ website access similar to premium cable packages, and other actions that make it difficult for users to access and use the internet if their use was lawful.

After a divisive series of speeches and votes, both houses of the California legislature passed it, with former Governor Jerry Brown signing it into law soon after. Federal agencies and telecommunications companies challenged the bill almost immediately, bringing about two large lawsuits against the state. Both lawsuits halted SB 822 from being implemented in California, which in turn delayed plans to to introduce legislation for similar plans.

Throughout 2019 and 2020, courts repeatedly ruled in favor of California, with both the telecom companies and the U.S. Government appealing the decisions to higher and higher courts. However, in 2021, the Biden administration, friendly to California’s net neutrality law, began to shake things up. In February of that year, a U.S. District Court ruled in favor of California, finally allowing the state to begin enforcing it. However, ISPs were not done and petitioned the U.S. Appeals Court to stop the law. 11 months later in January 2022, the court upheld the District ruling. ISPs tried again shortly after asking for an en banc rehearing with all judges present. That too was denied on Wednesday.

“The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc,” said the court in their decision on rehearing ACA Connects v. Bonta. “The petition for rehearing en banc is denied.”

In a tweet, FCC Chairwoman Jessica Rosenworcel praised the decision, noting the need for net neutrality and a “fair internet.”

“The 9th Circuit just denied the effort to rehear its decision upholding California’s net neutrality law,” tweeted Rosenworcel on Wednesday. “This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land.”

Meanwhile, ISPs and other telecommunication providers remained largely silent on the outcome on Wednesday and Thursday, largely due to the FCC itself looking at reinstating net neutrality soon once Biden’s pick for the FCC panel is confirmed and breaks the current 2-2 deadlock on the federal decision.

“The next place these companies can go is the U.S. Supreme Court,” explained San Jose-based tech lawyer Zachary Goodman to the Globe on Thursday. “You have one shot with them, and the companies don’t want to burn it on California if the federal law is about to change soon. So they’ll  likely be sitting on that. If they do choose to go to the Supreme Court, they have to have one heck of a plan. And that’s even if the Court decides to hear them in the first place. No matter which way you look, it looks difficult for these companies to really win this thing right now.”

Both the FCC panel decision and telecommunications companies bringing the California case to the Supreme Court have yet to be decided on as of Thursday.

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