According to top Federal Communications Commission officials (paraphrased from a background call), these were the seven key victories for the FCC in the decision by the US Court of Appeals for the D.C. Circuit:

1. The court upheld the Restoring Internet Freedom order’s reclassification of broadband internet access as a reasonable exercise of the FCC’s discretion, pointing to the Supreme Court precedent in the 2005 Brand X decision.
2. The court said the FCC was within its discretion to rule that the DNS (domain name system) and caching functions of broadband access did not make it a telecommunications service versus an information service.
3. The court upheld the FCC’s definition of mobile broadband as a private (Title I) service rather than a commercial service.
4. The court said the FCC was reasonable to conclude that Section 706 of the Communications Act (the FCC mandate to ensure advanced communications is being deployed in a reasonable and timely manner) was not an independent grant of regulatory authority. The previous FCC had said it was.
5. The court upheld the FCC’s advanced transparency rule, which ensures that the blocking, throttling and paid prioritization allowed under the order are disclosed to customers. That is how the FCC, Justice Department and Federal Trade Commission can together monitor ISP conduct for anticompetitive actions.
6. The court held the FCC’s decision to eliminate the rules was reasonable because the harms the rules had been designed to prevent could be addressed with that transparency and antitrust oversight.
7. The court said the FCC’s contention that reclassifying broadband access would boost broadband investment — agency critics had branded that as bogus — was based on “substantial evidence.”

The short version is that we lost the big prize (getting the Order overturned, or “vacated” as we lawyers say), but won enough to force this back to the Federal Communications Commission for further proceedings (which may yet result in the “Restoring Internet Freedom Order” or RIFO being reversed and/or vacated) and open up new fronts in the states. The net result on balance is rather similar to what we had after the 2014 court decision that tossed out the 2010 net neutrality rules but laid the groundwork for reclassifying broadband as Title II; a curve ball that lets all sides claim some sort of win and creates enough uncertainty to likely keep the worst Internet service provider (ISP) abuses in check for the time being. (Mind you, ISPs will continue to test the boundaries, as they are already doing without actual enforceable rights in place.)

Most importantly, industry and the FCC can’t get what they want most (preemption of state authority) without going full Title II. This puts the FCC in a bind, since it can’t deliver the thing industry most wants. It also means that various state laws (especially the comprehensive California net neutrality law) and various executive orders imposing some sort net neutrality obligations now go into effect get to be litigated individually. As with the California privacy law passed in 2018, industry now has significant incentive to stop messing around and offer real concessions to get some sort of federal law on the books. Also like the California Privacy Law, this is not going to be enough to overcome industry reluctance against a law with teeth and therefore is unlikely to go anywhere. So we are likely stuck until after the 2020 election.

I also want to emphasize that even the parts where we lost, as in 2014, contain the groundwork for ultimately winning. This gets lost in the headlines (particularly in the triumphant crowing of FCC majority). But like any good telenovela, this latest dramatic plot twist has lots of foreshadowing for the next few seasons and a set up for an even BIGGER plot twist in future seasons.

The Supreme Court declined to hear an appeal from Domino’s Pizza after a federal appellate court ruled that a blind customer can sue the chain under the Americans with Disabilities Act after he couldn’t fully use its website through screen-reading software. Domino’s had asked the Supreme Court to rule that the ADA didn’t apply to websites and apps, arguing the 1990 law predated the modern internet and that there were no firm rules businesses could comply with to make their online assets accessible. The Ninth Circuit Court of Appeals had ruled that since Domino’s is a place of public accommodation, it’s required under the law to provide “auxiliary aids and services” making visual materials accessible to visually impaired customers. The court found that applies to the chain’s website and app, even though they’re often used outside of Domino’s restaurants. The ruling may cause businesses to take website accessibility concerns more seriously.