Aca Connects v. Rob Bonta

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ACA CONNECTS – AMERICA’S                 No. 21-15430
COMMUNICATIONS ASSOCIATION,
FKA American Cable Association;             D.C. No.
CTIA – THE WIRELESS                      2:18-cv-02684-
ASSOCIATION; NCTA – THE                     JAM-DB
INTERNET & TELEVISION
ASSOCIATION; USTELECOM – THE
BROADBAND ASSOCIATION,                     OPINION
              Plaintiffs-Appellants,

                 v.

ROB BONTA, in his official capacity
as Attorney General of California,
               Defendant-Appellee.


      Appeal from the United States District Court
          for the Eastern District of California
       John A. Mendez, District Judge, Presiding

       Argued and Submitted September 14, 2021
               San Francisco, California

                Filed January 28, 2022
2                   ACA CONNECTS V. BONTA

    Before: J. Clifford Wallace, Mary M. Schroeder, and
             Danielle J. Forrest, Circuit Judges.

                  Opinion by Judge Schroeder;
                 Concurrence by Judge Wallace


                            SUMMARY*


            Preliminary Injunction / Preemption

    The panel affirmed the district court’s order denying
plaintiffs’ motion for a preliminary injunction against
enforcement of the California Internet Consumer Protection
and Net Neutrality Act of 2018, or SB-822.

    In a 2018 order, the Federal Communications
Commission decided to stop treating broadband internet
services as “telecommunications services” subject to
relatively comprehensive, common-carrier regulation
pursuant to Title II of the Communications Act, and to
classify them instead under Title I as lightly regulated
“information services,” which had the result of terminating
federal net neutrality rules. A group of industry trade
associations representing communications service providers
sought an injunction to prevent the California Attorney
General from enforcing SB-822, which in essence, codified
the rescinded federal net neutrality rules, but limited its
application to broadband internet services provided to
customers in California. The district court concluded there

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 ACA CONNECTS V. BONTA                      3

was no federal preemption because the FCC lacked the
requisite regulatory authority.

    In Mozilla Corp. v. F.C.C., 940 F.3d 1 (D.C. Cir. 2019),
the D.C. Circuit upheld the FCC’s 2018 reclassification
decision but struck down an accompanying order preempting
state net neutrality rules. The panel rejected the service
providers’ contention that SB-822 nevertheless was
preempted because it conflicted with the policy underlying
the FCC’s reclassification decision and conflicted with the
Communications Act and its limitations on federal regulation.
The panel also rejected the service providers’ contention that
SB-822 was preempted because federal law occupies the field
of interstate services.

    Guided by the D.C. Circuit’s decision in Mozilla, the
panel held that only the invocation of federal regulatory
authority can preempt state regulatory authority. The panel
held that, by classifying broadband internet services as
information services, the FCC no longer had the authority to
regulate in the same manner that it did when these services
were classified as telecommunications services. The FCC,
therefore, could not preempt state action, like SB-822, that
protects net neutrality. The panel held that SB-822 did not
conflict with the Communications Act itself, which only
limits the FCC’s regulatory authority. The panel held that the
service providers’ field preemption argument was foreclosed
by case law and various provisions of the Communications
Act.

    Concurring, Judge Wallace wrote separately to express
his concern that in some cases, parties appeal orders granting
or denying motions for preliminary injunctions in the
misguided belief they can ascertain the views of the appellate
4                ACA CONNECTS V. BONTA

court on the merits of the litigation, and this often leads to
unnecessary cost, delay and inefficient use of judicial
resources.


                        COUNSEL

Scott H. Angstreich (argued), Leslie V. Pope, and Alex A.
Parkinson, Kellogg Hansen Todd Figel & Frederick PLLC,
Washington, D.C., for Plaintiffs-Appellants CTIA – The
Wireless Association and USTelecom – The Broadband
Association.

Matthew A. Brill, James Tomberlin, Matthew T. Murchison,
and Ryan S. Baasch, Latham & Watkins LLP, Washington,
D.C., for Plaintiff-Appellant NCTA – The Internet &
Television Association.

Jeffrey A. Lamken, MoloLamken LLP, Washington, D.C.,
for Plaintiff-Appellant ACA Connects – America’s
Communications Association.

P. Patty Li (argued), Sarah E. Kurtz, and John D. Echeverria,
Deputy Attorneys General; Paul Stein and Heather B.
Hoesterey, Supervising Deputy Attorneys General; Joshua
Patashnik, Deputy Solicitor General; Thomas S. Patterson,
Senior Assistant Attorney General; Rob Bonta, Attorney
General; Attorney General’s Office, San Francisco,
California; for Defendant-Appellee.

Corbin K. Barthold, Berin Szóka, and James Dunstan,
TechFreedom, Washington, D.C., for Amicus Curiae
TechFreedom.
                 ACA CONNECTS V. BONTA                      5

Jeffrey M. Harris, Bryan Weir, and Tiffany H. Bates,
Consovoy McCarthy PLLC, Arlington, Virginia; Tara
S. Morrissey and Paul V. Lettow, U.S Chamber Litigation
Center; for Amici Curiae Chamber of Commerce of the
United States of America, California Chamber of
Commerce, Small Business & Entrepreneurship Council,
Telecommunications Industry Association, and
CALinnovates.

Brian R. Hardy and Kathleen A. Wilde, Marquis Aurbach
Coffing, Las Vegas, Nevada, for Amicus Curiae International
Center for Law & Economics.

Christopher S. Yoo, University of Pennsylvania Carey Law
School Transnational Legal Clinic, Philadelphia,
Pennsylvania, pro se Amicus Curiae.

Kevin K. Russell, Goldstein & Russell PC, Bethesda,
Maryland, for Amici Curiae Professors of Communications
Law, and Media Democracy Fund.

Corynne McSherry and Kit Walsh, Electronic Frontier
Foundation, San Francisco, California; Jacob A. Snow,
ACLU Foundation of Northern California, San Francisco,
California; Melissa Goodman and Zoe McKinney, ACLU
Foundation of Southern California, Los Angeles, California;
Andrew Jay Schwartzman, Benton Institute for Broadband &
Society, Washington, D.C.; for Amici Curiae Electronic
Frontier Foundation, ACLU Foundation of Northern
California, ACLU Foundation of Southern California, Access
Humboldt, Benton Institute for Broadband & Society, Clean
Money Campaign, Fight for the Future, Greenling Institute,
iFixit Inc., Media Justice, National Hispanic Media Coalition,
6               ACA CONNECTS V. BONTA

Oakland Privacy, Reddit Inc., Turn—The Utility Reform
Network, and Writers Guild of America, West, Inc.

Letitia James, Attorney General; Barbara D. Underwood,
Solicitor General; Steven C. Wu, Deputy Solicitor General;
Office of the Attorney General, New York, New York;
William Tong, Attorney General, Hartford, Connecticut;
Kathleen Jennings, Attorney General, Wilmington, Delaware;
Clare E. Connors, Attorney General, Honolulu, Hawai‘i;
Kwame Raoul, Attorney General, Chicago, Illinois; Aaron M.
Frey, Attorney General, Augusta, Maine; Brian E. Frosh,
Attorney General, Baltimore, Maryland; Maura Healey,
Attorney General, Boston, Massachusetts; Dana Nessel,
Attorney General, Lansing, Michigan; Keith Ellison,
Attorney General, Saint Paul, Minnesota; Gurbir S. Grewal,
Attorney General, Trenton, New Jersey; Hector Balderas,
Attorney General, Santa Fe, New Mexico; Ellen F.
Rosenblum, Attorney General, Salem, Oregon; Josh Shapiro,
Attorney General, Harrisburg, Pennsylvania; Peter F.
Neronha, Providence, Rhode Island; Thomas J. Donovan Jr.,
Attorney General, Montpelier, Vermont; Robert W. Ferguson,
Attorney General, Olympia, Washington; Joshua Kaul,
Attorney General, Madison, Wisconsin; Karl A. Racine,
Attorney General, Washington, D.C.; for Amici Curiae States
of New York, Connecticut, Delaware, Hawai‘i, Illinois,
Maine, Maryland, Massachusetts, Michigan, Minnesota, New
Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island,
Vermont, Washington, Wisconsin, and District of Columbia.

James R. Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Raphael N. Rajendra and Meredith
A. Johnson, Deputy County Counsel; Office of the County
Counsel, San Jose, California; for Amici Curiae County of
Santa Clara and Six Additional Local Governments.
                 ACA CONNECTS V. BONTA                        7

Phillip R. Malone, Juelsgaard Intellectual Property and
Innovation Clinic, Mills Legal Clinic at Stanford Law School,
Stanford, California; Michael J. Burstein, New York, New
York; for Amici Curiae Internet Law Professors.

Thomas H. Vidal, Pryor Cashman LLP, Los Angeles,
California, for Amici Curiae Access Now, Mozilla Corp.,
Public Knowledge, New America’s Open Technology
Institute, and Free Press.


                          OPINION

SCHROEDER, Circuit Judge:

                          Overview

    For the broadband internet industry, the critical regulatory
issues that have emerged so far in this century concern access
to the internet: what entities have access, on what terms, and
to what extent access should be regulated. The administrative
enthusiasm of the Federal Communications Commission
(“FCC”) has seemingly ebbed and flowed with the political
tides, culminating most recently in its 2018 decision to stop
treating broadband services as “telecommunications services”
subject to relatively comprehensive, common-carrier
regulation pursuant to Title II of the Communications Act,
and to classify them instead under Title I as lightly regulated
“information services.” In the Matter of Restoring Internet
Freedom, 33 FCC Rcd. 311 (2018) (“2018 Order”).

    This 2018 Order had the significant result of terminating
federal regulation intended to protect equal access to the
internet, popularly known as “net neutrality” rules. This in
8                ACA CONNECTS V. BONTA

turn has raised immediate questions about the extent of states’
authority in the field. In this appeal, we consider the
broadband industry’s contention that, when the FCC
reclassified broadband services under Title I, thereby
abandoning its regulatory authority with respect to net
neutrality, California was preempted from stepping into the
breach to enact its own net neutrality protections.

    Plaintiffs-Appellants are a group of industry trade
associations representing communications service providers
(“service providers”) who sought an injunction to prevent the
California Attorney General from enforcing the California
Internet Consumer Protection and Net Neutrality Act of 2018
(“SB-822”). Cal. Stats. 2018, ch. 976. This state law, in
essence, codified the rescinded federal net neutrality rules,
but limits its application to broadband internet services
provided to customers in California. The district court ruled
in favor of California and denied the service providers’
request for a preliminary injunction to block enforcement of
the statute. The district court concluded there was no
preemption because the FCC lacked the requisite regulatory
authority.

    The district court’s decision was in line with the D.C.
Circuit’s recent holding in Mozilla Corp. v. F.C.C., 940 F.3d
1 (D.C. Cir. 2019) (“Mozilla”). The court in Mozilla
reviewed the validity of the FCC’s 2018 reclassification
decision and an accompanying order preempting state net
neutrality rules. The court upheld the reclassification, but
struck down the preemption order. Id. at 18. The critical
issue with respect to preemption was whether the FCC
retained the statutory authority to adopt federal net neutrality
rules after its decision to reclassify broadband internet
services under Title I of the Communications Act. The D.C.
                 ACA CONNECTS V. BONTA                       9

Circuit held that, under Title I, the FCC did not have the
authority to regulate broadband services in this manner, and
because federal regulatory authority is a prerequisite to
preemption, the FCC could not expressly preempt the states.
See id. at 74–76.

    The service providers here nevertheless contend that the
California statute is preempted on the basis of both conflict
and field preemption. They argue first that SB-822 is
preempted because it conflicts with the policy underlying the
FCC’s reclassification decision; that policy was to eliminate
all net neutrality regulation of broadband services, not to
replace federal regulations with what could become a
checkerboard of state regulations. The service providers
additionally contend that SB-822 is preempted because it
conflicts with the Communications Act itself and its
limitations on federal regulation. They argue as well that
even if there is no preemption by virtue of any identifiable
conflict, federal law occupies the field of interstate services
and therefore preempts state laws regulating intrastate
services that intrude upon the field of interstate services.

    We conclude the district court correctly denied the
preliminary injunction. This is because only the invocation
of federal regulatory authority can preempt state regulatory
authority. As the D.C. Circuit held in Mozilla, by classifying
broadband internet services as information services, the FCC
no longer has the authority to regulate in the same manner
that it had when these services were classified as
telecommunications services. See id. at 75–76. The agency,
therefore, cannot preempt state action, like SB-822, that
protects net neutrality. See id. at 18. Without the authority
to preempt, it does not much matter whether SB-822 conflicts
with the federal policy objectives underlying the
10               ACA CONNECTS V. BONTA

reclassification decision. And SB-822 does not conflict with
the Communications Act itself, which only limits the FCC’s
regulatory authority. As to the service providers’ field
preemption argument, Supreme Court authority, the case law
of this circuit, and various provisions of the Communications
Act itself all foreclose that argument.

    The stakes in this case are high for the industry and
consumers. We have been aided in our study of the issues
with briefs submitted by a multitude of amici curiae,
including state and local governments, trade associations,
advocacy groups, and law professors. In order to adequately
explain the background of this case and the legal issues
before us, we first provide a brief introduction to the concept
of net neutrality and the recent history of FCC regulations
pertaining to it.

            An Introduction to Net Neutrality

    At its most fundamental level, the internet is a global
network of interconnected cables providing the physical
infrastructure that connects computers. Data travels along
these cables from the computer seeking information to the
computer that houses the information and back. To be
considered broadband internet, data must download to a
consumer’s device at relatively high speeds. See, e.g., Chris
Woodford, The Internet, EXPLAINTHATSTUFF! (July 6, 2021),
https://www.explainthatstuff.com/internet.html; Dave
Johnson, A Beginner’s Guide to Broadband Internet, the Most
Popular Type of Internet in the US, INSIDER (April 2, 2021),
https://www.businessinsider.com/what-is-broadband-internet.

   Many of the plaintiffs-appellants in this case are
broadband internet service providers, operating the cables that
                 ACA CONNECTS V. BONTA                     11

take information from the global cable networks to the
relevant computer. If the cables forming the internet were a
highway, data would be the cars driving along that highway,
and the internet service providers would build and maintain
the exit ramps from the highway to consumers’ homes and
businesses. Accordingly, consumers must subscribe to a
broadband internet service provider in order to connect to
high-speed internet.

    These broadband internet service providers control access
to the internet. They can do so on the basis of the content of
the information or the identity of the information’s creator.
This power of control has revenue creating potential.
Providers have exercised that power in different ways, such
as by blocking access altogether, slowing certain customer’s
access to the internet—commonly termed “throttling”—or
prioritizing access to some content over others. The power to
control access can therefore open the door for anti-
competitive, discriminatory behavior that could disadvantage
important segments of society. For illustration, the FCC has
found that service providers engage in anti-competitive
behavior when they block access to services that compete
with their own. See, e.g., Madison River Communications,
LLC, Consent Decree, 20 FCC Rcd. 4295 (2005) (finding that
a service provider blocked ports on its network that were used
by competing services, resulting in a consent decree and
fine).

    Any federal authority to regulate the exercise of that
control and safeguard equal access to the internet rests with
the FCC. That agency regulates broadband internet services
under the Communications Act, 47 U.S.C. § 151 et seq, and
the amendments to the Act made by the Telecommunications
Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. Under the
12               ACA CONNECTS V. BONTA

Communications Act, the FCC has the authority to classify
broadband internet services as either a “telecommunications
service” under Title II of the Act, 47 U.S.C. §§ 201–222, or
an “information service” under Title I, 47 U.S.C. §§ 151–155.

    The classification decision is key because it dictates the
scope of the FCC’s regulatory authority. The FCC has
express, expansive authority to regulate Title II
telecommunications services, but only a more limited
“ancillary authority” with respect to Title I information
services. Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 975–76 (2005) (“Brand X”).
Pursuant to Title I, the FCC can only impose regulations
ancillary or necessary to the effective performance of the
FCC’s specific statutory responsibilities. See id.; see also
People of State of California v. F.C.C., 905 F.2d 1217, 1240
n.35 (9th Cir. 1990) (“California I”); 47 U.S.C. §§ 151–155.
If classified under the broad authority of Title II,
telecommunications services are treated as common carriers,
which triggers a multitude of statutory restrictions and
requirements. Brand X, 545 U.S. at 975–76; California I,
905 F.2d at 1240 n.35; 47 U.S.C. §§ 201–222.

    Under Title II, the FCC can regulate broadband internet
services to ensure what has come to be known as “net
neutrality,” by adopting regulations making it illegal for
service providers to engage in blocking, throttling, and
prioritization for payment or to benefit an affiliate. See U.S.
Telecom Ass’n v. F.C.C., 825 F.3d 674, 689 (D.C. Cir. 2016)
(upholding In the Matter of Protecting and Promoting the
Open Internet, 30 FCC Rcd. 5601 (2015) (“2015 Order”)).
Such regulation imposes costs that critics have argued would
threaten to stifle investment and innovation, 2018 Order ¶¶ 2,
4, and which supporters have contended are required to
                  ACA CONNECTS V. BONTA                         13

ensure open internet access along with broadband investment
and deployment, 2015 Order, ¶¶ 8, 11.

    The upshot of the controversy is that net neutrality rules
have had an off-again, on-again history. Prior to 2015, the
FCC classified broadband internet as an information service
under Title I, and the agency’s efforts to impose net neutrality
rules were repeatedly struck down as outside the regulatory
authority of that Title. See, e.g., Comcast Corp. v. F.C.C.,
600 F.3d 642, 644 (D.C. Cir. 2010); Verizon v. F.C.C.,
740 F.3d 623, 628 (D.C. Cir. 2014). In 2015, the FCC
reclassified broadband as a Title II, telecommunications
service and adopted net neutrality rules which the D.C.
Circuit upheld. U.S. Telecom Ass’n, 825 F.3d at 689, 733.

     Six months after that decision, however, a new
administration took office and brought with it different
attitudes towards net neutrality. In 2018, the FCC reverted to
the Title I classification and rescinded the net neutrality rules,
a decision that ultimately gave rise to this litigation. 2018
Order ¶¶ 2, 4, 65. The FCC reasoned that the net neutrality
rules were too expensive and that the costs of the rules
outweighed their benefits. Id. at ¶¶ 2, 4. Instead, the FCC
adopted a “Transparency Rule” calling for broadband service
providers to disclose practices that block, throttle, or
prioritize internet traffic for payment or to benefit an affiliate.
See 2018 Order ¶¶ 3, 215–231. These actions benefitted
internet service providers, at least in part because the
Transparency Rule lowered their compliance costs. See, e.g.,
David Shepardson, U.S. Defends FCC’s Repeal of Net
Neutrality Rules, Reuters, Oct. 12, 2018.

  At the same time, in an effort to preclude state action, the
FCC announced a “Preemption Directive,” which purported
14               ACA CONNECTS V. BONTA

to preempt “any state or local requirements that are
inconsistent with the federal deregulatory approach,” 2018
Order ¶ 194, including “any state or local measures that
would effectively impose rules or requirements that [the
Order] repealed,” 2018 Order ¶ 195. The Preemption
Directive also benefitted the service providers because it was
aimed at preventing state regulations that would impose
additional compliance costs.

    In Mozilla, various states and consumer groups
challenged the Reclassification Order and accompanying
Preemption Directive. The D.C. Circuit upheld the
reclassification, considering itself bound by the Supreme
Court’s decision in Brand X, 545 U.S. at 19. Mozilla,
940 F.3d. at 18–19. Because the Supreme Court had made it
clear in Brand X that the Communications Act affords the
FCC the discretion to classify broadband services, the D.C.
Circuit upheld the classification under Title I as reasonable.
See id. at 18–20, 87.

    Two judges in Mozilla nevertheless expressed
considerable reservations about their holding, because the
nature of broadband services had changed substantially since
Brand X was decided. See id. at 18–20; see also id. at 86–87
(Millett, J. concurring); Id. at 94–95 (Wilkins, J. concurring).
Judge Millett explained in her concurrence that, at the time
Brand X was decided, consumers used service providers
chiefly to gain access to information services like domain
name services and caching. See id. at 87. Today, these
information services no longer occupy the same significance
that they once did. See id. While the judges felt their hands
were tied by Brand X, they suggested that it is no longer
accurate to rely on domain name services and caching to
                 ACA CONNECTS V. BONTA                        15

determine the legal status of broadband services. See id.
at 88–90, 94–95.

    Although it upheld the reclassification to Title I, the court
in Mozilla vacated the Preemption Directive. Id. at 74. The
court explained that the FCC may only preempt state law, as
the Preemption Directive purported to do, if the agency is
acting within the scope of its congressionally delegated
authority to regulate. Id. at 74–75 (citing Louisiana Pub.
Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986)
(“Louisiana”)). By reclassifying broadband as a Title I
information service, the FCC stripped itself of the requisite
regulatory authority and, accordingly, of the preemptive
authority to displace state laws. See id. at 74–76.

               Background of this Litigation

    In the immediate wake of the FCC’s 2018 decision, but
before the D.C. Circuit’s Mozilla decision, California adopted
SB-822. This state law does what the Preemption Directive
was intended to prevent: it essentially codifies the FCC’s
2015 net neutrality rules, Compare Cal. Civ. Code
§ 3101(a)(1)–(2), (4), (7)(A) with 2015 Order ¶¶ 15–16, 18,
21, although it applies only to broadband internet services
provided to customers in California. Cal. Civ. Code
§ 3100(b), (k). Additionally, SB-822 contains a disclosure
measure similar to the FCC’s 2018 Transparency Rule.
Compare Cal. Civ. Code § 3101(a)(8) with 47 C.F.R. § 8.1(a).

     California was one of the many plaintiffs in the Mozilla
litigation challenging the FCC’s 2018 decision. See Mozilla,
940 F.3d at 13, 17. Before the D.C. Circuit could decide that
case, the service providers filed this action in the District
Court for the Eastern District of California, challenging SB-
16               ACA CONNECTS V. BONTA

822. They requested declaratory and injunctive relief,
including a preliminary injunction preventing California from
enforcing SB-822. The United States filed a separate action
alleging similar claims. The two cases were later combined.
By agreement of the parties, this litigation was stayed during
the pendency of Mozilla.

    In 2019, the D.C. Circuit issued its opinion in Mozilla
vacating the Preemption Directive. See Mozilla, 940 F.3d at
74–76. The D.C. Circuit held that the FCC could not preempt
the states from regulating broadband services because, after
reclassification, the FCC did not have the underlying
authority to regulate broadband, and therefore could not
preempt states from doing so. See id. at 18, 74–76. The
Mozilla decision is important to our decision here. Not only
did the parties agree to stay this case while Mozilla was
pending, but none of the parties now challenge the
correctness or finality of the D.C. Circuit’s opinion.
Following the conclusion of the Mozilla litigation in October
2019, and after the 2020 election resulted in a new
administration, the United States withdrew as a plaintiff in
this case.

    After hearing extensive argument on the effect of the
Mozilla decision, the district court, in a ruling from the bench,
denied a preliminary injunction to block enforcement of the
California statute. The court explained its decision with
reasoning similar to that underlying the D.C. Circuit’s
decision in Mozilla which had vacated the Preemption
Directive. The district court held that the FCC, after the
reclassification decision, lacked the regulatory authority to
preempt SB-822.
                 ACA CONNECTS V. BONTA                        17

    This appeal followed. To succeed in obtaining a
preliminary injunction, the service providers must establish
that they are likely to succeed on the merits, they are likely to
suffer irreparable harm in the absence of preliminary relief,
the balance of the equities supports the motion for a
preliminary injunction, and an injunction is in the public
interest. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th
Cir. 2009) (citing Winter v. N.R.D.C., Inc., 555 U.S. 7, 20
(2008). If the service providers fail to demonstrate that they
are likely to succeed on the merits, this court need not
consider the remaining factors. See DISH Network Corp. v.
F.C.C., 653 F.3d 771, 776–77 (9th Cir. 2011).

    On the merits, the service providers do not dispute that,
under Title I, the FCC now lacks the regulatory authority to
promulgate net neutrality rules. Their principal contentions
are that the California statute is nevertheless preempted
because it conflicts with both the purpose underlying the
FCC’s reclassification decision and with the Communications
Act itself. They also argue that the FCC occupies the entire
field of interstate communications services to the exclusion
of the states. We are guided by the D.C. Circuit’s decision in
Mozilla as to the scope of the FCC’s regulatory and
preemptive authority after the 2018 reclassification.

    I. The California Statute Does Not Conflict With the
       FCC’s Reclassification of Broadband Services
       Under Title I

    Resolution of the question of conflict preemption in this
case involves a straightforward application of federal
preemption principles. The service providers argue that the
FCC’s 2018 reclassification of broadband services as Title I
information services, which eliminated the federal net
18               ACA CONNECTS V. BONTA

neutrality rules promulgated under Title II, preempts state net
neutrality rules. They essentially contend that the state
regulation conflicts with the absence of federal regulation. A
fundamental principle of preemption, however, is that an
absence of federal regulation may preempt state law only if
the federal agency has the statutory authority to regulate in
the first place. Louisiana, 476 U.S. at 374. The D.C. Circuit
applied this principle when it vacated the FCC’s Preemption
Directive, as it recognized that the FCC does not have the
authority to adopt federal net neutrality rules and is therefore
unable to preempt such state regulation. See Mozilla, 940
F.3d at 74–76. Neither party challenges the validity or
finality of Mozilla, so we look to the D.C. Circuit’s analysis
to guide our own.

    Underlying the Mozilla decision are principles laid down
by the Supreme Court relating to an agency’s regulatory and
preemptive authority. When a federal agency pursues a
policy of non-regulation, as the FCC was doing in its 2018
Order, the Supreme Court has recognized that the agency can
preempt the states from exercising regulatory authority only
when the agency has chosen not to exercise its full authority.
See Ray v. Atlantic Richfield Co., 435 U.S. 151, 178 (1978).

    In Ray, Congress had granted the Secretary of
Transportation broad authority to regulate the “vessel size and
speed limitations” of tankers traveling in Puget Sound. Id.
at 174. The Secretary chose not to ban large tankers although
it had the authority to do so. Id. at 174–75. The Supreme
Court held that, because the Secretary had the authority to
ban large tankers, its decision not to implement such a ban
preempted the states from doing so. Id. at 178.
                 ACA CONNECTS V. BONTA                      19

    The service providers in this case urge us to rely on Ray.
What happened in Ray, however, is not what happened here.
By reclassifying broadband services under Title I, the FCC
gave up its authority to regulate broadband services as
common carriers and hence surrendered the authority it had
to adopt federal net neutrality rules.

    This case is thus more like the situation in Louisiana
where the Court held that a federal agency may not preempt
state regulation when the agency itself does not have
regulatory authority. See 476 U.S. at 374. At issue in
Louisiana was whether state regulation of intrastate
depreciation rates was preempted where Congress had not
given the federal agency authority to regulate those rates. See
id. at 358–59. The FCC in Louisiana, to further its national
policy of increasing competition in the telephone services
industry, attempted to preempt state regulators who refused
to accept this national policy. Id. Accordingly, the FCC
issued two orders that changed depreciation practices
affecting telephone company facilities, asserting that these
orders would preclude state regulators from using their own
depreciation procedures for intrastate rate-making purposes.
Id. at 360–62. But the Supreme Court explained that the
Communications Act expressly denies the FCC the power to
preempt state regulation of intrastate rates. Id. at 373.
Accordingly, the Supreme Court held that the FCC could not
preempt state regulation. See id. at 374–75. Without the
power to act, a federal agency can not preempt. Id. at 374.
We conclude that principle applies here. The FCC can not
preempt SB-822 because it gave up its full regulatory
authority by reclassifying broadband as a Title I information
service.
20               ACA CONNECTS V. BONTA

    This is in accord with the D.C. Circuit’s decision in
Mozilla. It followed the principles articulated in Ray and
Louisiana when it vacated the FCC’s “Preemption Directive”
that accompanied the “Reclassification Order.”            The
Preemption Directive had declared as preempted “any state or
local requirements that are inconsistent with [the Order’s]
deregulatory approach,” 2018 Order ¶ 194, including “any
state or local measures that would effectively impose rules or
requirements that [the Reclassification Order] repealed,”
2018 Order ¶ 195. But unlike the situation in Ray where the
federal agency retained its regulatory authority and the state
was preempted, 435 U.S. at 178, the Preemption Directive did
not rest on any regulatory authority. By reclassifying
broadband as an information service, the FCC surrendered its
authority to regulate with respect to net neutrality. And just
as in Louisiana, where a federal agency was unable to
preempt state law without the authority to regulate, 476 U.S.
at 374–75, the Preemption Directive exceeded the FCC’s
Title I statutory authority to regulate broadband and,
therefore, exceeded its authority to preempt state regulation.
See Mozilla, 940 F.3d at 74–76.

    The service providers try to avoid the effect of
reclassification to Title I by arguing that the decision was not
an abdication of authority but an exercise of discretion under
the statute as to the appropriate classification of
communications services. The service providers are correct
that the 2018 decision was an exercise of statutory authority
to make a classification decision, but they fail to acknowledge
that the effect of that decision was to eliminate the agency’s
authority to impose net neutrality rules.

   Indeed, the FCC itself has acknowledged that it did away
with the statutory authority to adopt net neutrality rules when
                 ACA CONNECTS V. BONTA                      21

it reclassified broadband internet services as information
services under Title I. It said as much in the Reclassification
Order. See, e.g., 2018 Order ¶ 267 (finding after
reclassification no “source[] of statutory authority that
individually or in the aggregate” supports net neutrality
conduct rules). This conclusion had experience behind it.
The FCC tried unsuccessfully to adopt net neutrality rules
under Title I several times in the early 2000s and was unable
to do so until broadband services were reclassified as a
telecommunications service under Title II in 2015. See U.S.
Telecom Ass’n, 825 F.3d at 689. The FCC knew that its
reclassification decision in 2018 stripped the FCC of its
authority to adopt federal net neutrality rules, and the D.C.
Circuit held it also stripped it of its power to preempt. See
Mozilla, 940 F.3d at 74–76; see also Louisiana, 476 U.S.
at 374–75. Accordingly, there can be no preemption of the
California statute as a result of the Reclassification Order.

    The service providers point instead to the reasons for the
reclassification to contend that the FCC’s policy goals
underlying the reclassification decision have preemptive
effect. They point out that the FCC made the reclassification
decision in reliance on its policy judgment that a light-touch
regulatory framework would be most effective. They contend
that, because the D.C. Circuit upheld these policy-based
grounds for the FCC’s decision, the FCC’s policy behind the
decision forms a valid predicate for conflict preemption.

    Yet the Supreme Court has expressly rejected the
argument that an agency’s policy preferences can preempt
state action in the absence of federal statutory regulatory
authority. See Louisiana, 476 U.S. at 374–75. The Supreme
Court warned that to permit preemption on the basis of policy
rather than legislation would allow a federal agency to confer
22               ACA CONNECTS V. BONTA

power upon itself and override the power of Congress. Id.
As the Supreme Court said, “[t]his we are both unwilling and
unable to do.” Id. at 375.

    The service providers also suggest that the FCC’s policy
choice should have preemptive effect by way of a novel
interpretation of Chevron U.S.A., Inc. v. N.R.D.C., 467 U.S.
837 (1984) (“Chevron”). Chevron lays out a two-step
analysis to decide when courts should defer to an agency’s
interpretation of a statute. Id. at 842–43. The first step is to
determine whether a statute is ambiguous. Id. If the court
finds any ambiguity, the court presumes that Congress
intended to delegate to the agency the authority to resolve the
ambiguity, relying on its expert policy judgment. Id. at
842–44. In the second step, the court determines if the
agency has chosen a reasonable interpretation. Id.

    The service providers point to the premise of Chevron—
that Congress delegated to agencies the authority to interpret
ambiguous statutory language through the exercise of
agencies’ reasoned policy judgment—to argue that the FCC’s
deregulatory policy preferences are somehow binding on the
states.

    The D.C. Circuit, however, strenuously rejected this
attempt to turn the authority to make statutory choices under
Chevron into an engine for preemption. See Mozilla,
940 F.3d at 82–85. The court explained that the discretion to
classify a communications service under federal law does not
permit the FCC to impose upon the states the policy
preferences underlying that definitional choice. See id. As
the D.C. Circuit explained,
                 ACA CONNECTS V. BONTA                      23

       [This] theory of Chevron preemption, in other
       words, takes the discretion to decide
       which definition best fits a real-world
       communications service and attempts to turn
       that subsidiary judgment into a license to
       reorder the entire statutory scheme to enforce
       an overarching “nationwide regime” that
       enforces the policy preference underlying the
       definitional choice. Nothing in Chevron goes
       that far.

Id. at 84 (internal citations omitted).           Therefore,
notwithstanding the FCC’s power under Chevron to take into
account policy judgments about the benefits of a “light-
touch” regulatory approach when making the decision to
classify broadband services under Title I, such policy
preferences are not a source of the statutory authority
required to regulate or to preempt. See id. at 82–85. As the
D.C. Circuit said, “[n]o matter how desirous of protecting
their policy judgments, agency officials cannot invest
themselves with power that Congress has not conferred. And
nothing in Chevron rewrites or erases plain statutory text.”
Id. at 83 (internal citations omitted).

    In spite of the D.C. Circuit’s conclusion, the service
providers go on to contend that this court has already decided
the preemption issue in its favor. They point to our decision
in People of State of California v. F.C.C., 39 F.3d 919,
931–32 (9th Cir. 1994) (“California”), where we recognized
some limited preemptive authority under Title I when state
regulation would make it impossible for federal regulatory
measures to take effect. That principle is not applicable here,
because the FCC has adopted no relevant regulatory
measures.
24               ACA CONNECTS V. BONTA

    California arose at a time of unusual regulatory activity
that preceded the advent of the internet and followed the
break-up of AT&T. The break-up resulted in the creation of
Regional Bell Operating Companies (BOCs) that could
participate in the growing industry providing information
services over telephone lines. Id. at 923–24. To prevent the
BOCs from having a competitive advantage as a result of
their control of these lines, the FCC had originally ordered
the BOCs to structurally separate their telephone operations
from the related services. Id. In 1986, however, the FCC
determined that actual structural separation was not necessary
and that less stringent, and less costly, measures could serve
the same purpose. Id. at 924. When it eliminated the
structural separation requirements and substituted less
stringent measures, it also entered an order preempting any
state from imposing more stringent measures, as, for
example, structural separation. Id. at 931.

    States, not surprisingly, challenged the preemption order,
contending that the FCC, per the Supreme Court’s decision in
Louisiana, had no preemptive authority when acting pursuant
to Title I. Id. at 932. We held that our own decisions had
recognized an “impossibility” exception to allow the FCC to
preempt state measures that would be inconsistent with lawful
federal regulation. Id. at 931. Since the federal regulation
allowed the enhanced services to be provided on an integrated
basis, but BOC’s compliance with state regulations could
result in structural separation, we upheld the limited
preemptive order. Id. at 932–33. The situation was very
similar to that in Ray, where the exercise of federal regulatory
authority preempted inconsistent state measures. Ray,
435 U.S. at 178.
                 ACA CONNECTS V. BONTA                        25

    In this case, of course, the FCC has not adopted any
regulatory measures. It has instead diminished its authority
to regulate by its reclassification of the service providers to a
relatively unregulated category under the Communications
Act. There is thus no conflict between the state’s enactment
of SB-822 and the FCC’s order. California is therefore in
line with Ray, Mozilla, and our decision today. Without the
underlying authority to regulate net neutrality under Title I,
the FCC is without the authority to preempt California from
doing so. See Louisiana, 476 U.S. at 374–75.

    In a similar vein, we reject the service providers’
argument about the FCC’s disclosure requirements. The
Reclassification Order was accompanied by disclosure
requirements, known as a Transparency Rule. This
Transparency Rule requires broadband providers to disclose
practices that, for payment or to benefit an affiliate, block,
throttle, or prioritize internet traffic. 2018 Order ¶¶ 3, 215.
The service providers argue that because the D.C. Circuit
upheld these disclosure requirements, they foreclose any
other regulation of broadband services.

    But the D.C. Circuit did not hold that the Transparency
Rule had any effect on the states’ ability to regulate net
neutrality. Mozilla upheld the FCC’s determination that a
disclosure-based regime—without net neutrality
rules—provided consumer protection. 940 F.3d at 46–49.
The Mozilla court did not hold, however, that the FCC’s
decision displaced all state regulatory authority that went
beyond the federal disclosure requirements. It construed the
FCC’s Title I preemption authority narrowly. See id. at
75–76, 82–85. The legal effect of the reclassification, and the
adoption of the Transparency Rule, was to diminish federal
regulatory authority. As a result, despite the FCC’s policy
26               ACA CONNECTS V. BONTA

preference for a lightly-regulated broadband marketplace, the
agency no longer had the requisite authority to adopt federal
net neutrality rules and could not preempt states from
adopting them. See id.

    The district court correctly decided that the service
providers are unlikely to succeed on the merits of their claim
that SB-822 conflicts with the FCC’s 2018 Order.

     II. There Is No Conflict Between the California
         Statute and the Communications Act

    The service providers’ alternative position relates to the
Communications Act itself. They contend that the California
statute conflicts with the text of two provisions of the
Communications Act. 47 U.S.C. §§ 153(51), 332(c)(2).
According to the service providers, these provisions limit the
states’ ability to regulate broadband services. The provisions,
however, do not support this theory.

    Section 153(51) is located in the Communication Act’s
lengthy list of definitions.        This section defines a
“telecommunications carrier” and it further provides that a
“telecommunications carrier shall be treated as a common
carrier under this chapter only to the extent that it is engaged
in providing telecommunications services.” 47 U.S.C.
§ 153(51) (emphasis added).

    Section 332 pertains to mobile broadband, which is the
high-speed internet access delivered to cell phones and other
mobile devices. For mobile broadband, there is a dual
classification system that is similar to the classification
system for telecommunications and information services. A
“commercial mobile service” is subject to common carrier
                 ACA CONNECTS V. BONTA                        27

status and a “private mobile service” is not. 47 U.S.C.
§§ 332(c)(1)–(2). Section 332(c)(2), defines “private mobile
services,” stating in relevant part that “[a] person engaged in
the provision of a service that is a private mobile service shall
not, insofar as that person is so engaged, be treated as a
common carrier for any purpose under this chapter.”
47 U.S.C. § 332(c)(2) (emphasis added).

    The service providers urge that Sections 153(51) and
332(c)(2) mean that states may not subject information
services and private mobile services to any type of regulation
that, under federal law, could be imposed only on common-
carriers. They contend that these provisions limiting the
FCC’s regulatory authority also limits the states’ authority.
They do not.

    The text of each provision defines and limits only the
FCC’s regulatory authority and makes no mention of the
states’ authority to regulate. 47 U.S.C. §§ 153(51), 332(c)(2).
The provisions explicitly state that they are defining the
extent of FCC regulation under “this chapter,” meaning
Chapter 5 of the Communications act, and do not mention, let
alone defend or displace, the regulatory authority of the
states. The two provisions thus prevent the FCC itself, and
not the states, from imposing common carrier regulations on
either information services or private mobile services.

    Indeed, the D.C. Circuit in Mozilla held that Section
153(51) is a limitation on the FCC’s regulatory authority and
does not affect the states’ authority. Mozilla, 940 F.3d at 79.
There, the FCC had argued that the section provided the
agency with the requisite source of regulatory authority to
support its Preemption Directive against state regulation. Id.
at 79. But the D.C. Circuit quickly disposed of this argument.
28                ACA CONNECTS V. BONTA

See id. Looking to the text of Section 153(51), the court said
that this provision could not be a source of regulatory
authority because it is a limitation on the FCC’s authority. Id.
 The court also observed that Congress would not hide such
an expansive source of regulatory and preemptive authority
in this part of the statute. Id. As the D.C. Circuit said:

        It also would make no sense for Congress to
        bury the enormously far-reaching and
        consequential authority to override every
        single State’s statutorily conferred power to
        regulate intrastate communications deep
        within a list of fifty-nine definitions in a non-
        regulatory portion of the statute, and then
        articulate the relevant definition as a
        restriction of the Commission’s power.

Id. We follow the D.C. Circuit’s well-reasoned decision.
Here, the service providers cannot stretch a provision limiting
the FCC’s power to regulate common carriers into an
overarching grant of preemptive power over the states’
authority to regulate net neutrality. See id.

    Other provisions of the statute demonstrate that Congress
knew how to preempt state authority when it wanted to. The
Communications Act contains numerous express preemption
provisions. See, e.g., 47 U.S.C. §§ 223(f)(2), 230(e)(3) (“No
cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent with
this section”), 253(a), 253(d) (“If . . . the Commission
determines that a State or local government has permitted or
imposed any statute . . . that violates subsection (a) or (b), the
Commission shall preempt the enforcement of such statute
. . . to the extent necessary to correct such violation or
                 ACA CONNECTS V. BONTA                       29

inconsistency.”), 332(c)(3) (“State Preemption . . .
[n]otwithstanding sections 152(b) and 221(b) of this title, no
State or local government shall have the authority to regulate
the entry of or the rates charged by any commercial mobile
service or any private mobile service . . . ”). Sections 153(51)
and 332(c)(2) contain no such express preemption provisions.
We should understand from the omission that Congress did
not intend Sections 153(51) and 332(c)(2) to have preemptive
effect.

    If there were any remaining doubt, the Savings Provision
in Section 601(c)(1) of the Telecommunications Act provides
even more evidence that Section 153(51) was not intended to
limit the states’ authority. See Telecommunications Act of
1996, Pub. L. No. 104-104, § 601(c)(1), 101 Stat. 56, 143
(1996), reprinted in 47 U.S.C. § 152 note. The Savings
Provision says “[t]his Act and the amendments made by this
Act shall not be construed to modify, impair, or supersede
Federal, State, or local law unless expressly so provided in
such Act or amendments.” Id. (emphasis added). Because
the 1996 Amendments added Section 153(51) to the
Communications Act, and Section 153(51) contains no
express statement of preemption, the Savings Provision
precludes any inference of preemptive intent.            See
Telecommunications Act of 1996, § 153(49). Therefore, the
service providers cannot successfully maintain that the
California statute conflicts with the Communications Act.

   III.    The California Statute Does Not Impermissibly
           Touch on the Field of Interstate
           Communications

   Even in the absence of an express conflicting
Congressional command, a state law may be preempted when
30               ACA CONNECTS V. BONTA

federal law so thoroughly occupies a legislative field as to
demonstrate Congressional intent to exclude all state law.
See, e.g., Arizona v. United States, 567 U.S. 387, 399 (2012).
In this appeal, the service providers argue that the field of
interstate communications services is exclusively federal and
that SB-822 therefore impermissibly regulates in that field.

    SB-822 limits its application, however, to broadband
internet access services “provided to customers in California”
and to internet service providers that “provide[] broadband
Internet access service to an individual, corporation,
government, or other customer in California.” Cal. Civ. Code
§ 3100(b), (k). In Greater Los Angeles Agency on Deafness,
Inc. v. Cable News Network, Inc., 742 F.3d 414, 433 (9th Cir.
2014) (“GLAAD”), we reviewed an analogous California
statute that regulated online content only when it was
accessed by California viewers. Id. at 433. We held that
such state regulation of internet services does not have the
practical effect of regulating wholly interstate conduct. See
id.

      The service providers nevertheless resort to Section 152
of the Communications Act to argue that any state regulation
of intrastate communications that touches on interstate
communications, such as SB-822, impermissibly regulates in
that field. 47 U.S.C. § 152. But Section 152 merely excludes
the FCC from regulation of intrastate communications. It
states in relevant part that “[t]he provisions of this chapter
shall apply to all interstate and foreign communication”
except that “nothing in this chapter shall be construed to
apply or to give the Commission jurisdiction with respect to
. . . intrastate communication service.” 47 U.S.C. § 152.
                ACA CONNECTS V. BONTA                     31

    The service providers also point to a statement by the
Supreme Court interpreting Section 152 as affording the FCC
“plenary authority” over interstate communications.
Louisiana, 476 U.S. at 360. They ask us to conclude that
state regulations may not touch on interstate communications.
Yet the division of regulatory authority is not so simple and
Louisiana does not go so far. The Louisiana Court rejected
any interpretation of the Communications Act that would
neatly divide power between federal and state authority. See
id. The Supreme Court said in reference to Section 152:

       while the Act would seem to divide the world
       into two hemispheres—one comprised of
       interstate service, over which the FCC would
       have plenary authority, and the other made up
       of intrastate service, over which the States
       would retain exclusive jurisdiction—in
       practice, the realities of technology and
       economics belie such a clean parceling of
       responsibility. This is so because virtually all
       telephone plant that is used to provide
       intrastate service is also used to provide
       interstate service, and is thus conceivably
       within the jurisdiction of both state and
       federal authorities. Moreover, because the
       same carriers provide both interstate and
       intrastate service, actions taken by federal and
       state regulators within their respective
       domains necessarily affect the general
       financial health of those carriers, and hence
       their ability to provide service, in the other
       “hemisphere.”
32               ACA CONNECTS V. BONTA

Id. Contrary to the service providers’ contention, the
Louisiana Court described the Communications Act as
establishing dual state and federal regulatory authority. Id.
at 375; see also Mozilla, 940 F.3d at 81 (noting “the
Communications Act’s vision of dual federal-state authority
and cooperation”).

    Indeed, we have previously rejected field preemption
arguments that are similar to those made on this appeal. In
GLAAD, the plaintiff, the Cable News Network, Inc.
(“CNN”), argued that the Telecommunications Act as
amended by the Twenty-First Century Communications and
Video Accessibility Act, occupied the legislative field of
closed captioning of videos on the internet. 742 F.3d at
428–29. Accordingly, CNN contended that a California state
law that regulated the closed captioning of CNN’s online
videos impermissibly entered that field. See id. at 428–29,
433. We held that Congress did not preempt the field of
closed captioning, principally because the FCC had left room
for state laws to supplement the federal regulatory scheme.
See id. at 428–29.

    Similarly, in the field of interstate broadband services,
states have taken advantage of the space left for state laws to
supplement the federal scheme. There are many illustrations
cited by states in amici briefs. For example, Maine, Nevada,
and Minnesota have all regulated broadband providers by
enacting laws requiring them to obtain permission from
consumers before sharing the consumers’ data. See 35-A Me.
Rev. Stat. Ann. § 9301; Minn. Stat. § 325M.01 et seq.; Nev.
Rev. Stat. § 205.498. And the FCC itself recently
acknowledged the states’ role in, among other things, policing
fraud, taxation, general commercial dealings, and enforcing
fair business practices in the field of interstate broadband
                 ACA CONNECTS V. BONTA                        33

services. 2018 Order ¶ 196. Accordingly, the realities of
today show a dual-system of regulation that refutes the
service providers’ argument.

      The Communications Act itself reflects a federal scheme
that leaves room for state regulation that may touch on
interstate services. For example, Section 253, which removes
barriers to entry to the interstate and intrastate
telecommunications industry, expressly preserves a role for
states to protect consumer rights in this field. 47 U.S.C.
§ 253(a), (b). The express preemption provisions located
throughout the Communications Act are predicated on the
assumption that states otherwise would have concurrent
authority to regulate interstate services. To illustrate, Section
253(a) provides that “[n]o State or local statute or regulation
. . . may prohibit . . . the ability of any entity to provide any
interstate or intrastate telecommunications service.”
47 U.S.C. § 253(a). If Congress had intended the
Communications Act to preempt state regulation touching on
any interstate communications, there would be no need for
any express preemption provisions.

    As the Supreme Court said in Louisiana, the argument
that states’ regulatory authority “should be confined to
intrastate matters which are separable from and do not
substantially affect interstate communication . . .
misrepresents the statutory scheme . . .” 476 U.S. at 373–74
(internal quotations omitted). The district court correctly
concluded that the service providers are unlikely to prevail on
their argument that SB-822 is field preempted by the
Communications Act.
34               ACA CONNECTS V. BONTA

                         Conclusion

    The judgment of the United States District Court for the
District of Eastern California denying a preliminary
injunction that would bar enforcement of SB-822 is
AFFIRMED.



WALLACE, Circuit Judge, concurring:

    I concur in the majority opinion. I write separately to
express my concern that “in some cases, parties appeal orders
granting or denying motions for preliminary injunctions in
order to ascertain the views of the appellate court on the
merits of the litigation.” Sports Form, Inc. v. United Press
Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982). Here, we are
solely reviewing a denial of a preliminary injunction, see
Opin. at 24, 33, and we thus can express no view on issues
arising after a trial dealing with a permanent injunction. See,
e.g., Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085,
1090 (9th Cir. 2013) (“We have repeatedly emphasized the
preliminary nature of preliminary injunction appeals.”).

    I emphasize that appealing from a grant or a denial of a
preliminary injunction to obtain an appellate court’s view of
the merits often leads to “unnecessary delay to the parties and
inefficient use of judicial resources.” Sports Form, 686 F.2d
at 753. These appeals generally provide “little guidance”
because “of the limited scope of our review of the law” and
“because the fully developed factual record may be materially
different from that initially before the district court.” Id.
Given the limitations of reviewing an order granting or
denying a preliminary injunction, we have repeatedly
                 ACA CONNECTS V. BONTA                        35

cautioned parties that a disposition of a preliminary
injunction appeal is not an adjudication on the merits and that
the parties should not “read too much into” such holdings.
Gregorio T. v. Wilson, 59 F.3d 1002, 1005 (9th Cir. 1995).

    We have also “repeatedly admonished district courts not
to delay trial preparation to await an interim ruling on a
preliminary injunction.” California v. Azar, 911 F.3d 558,
583 (9th Cir. 2018). Here, the plaintiffs filed a renewed
motion for a preliminary injunction on August 5, 2020. The
district court denied the motion on February 23, 2021. The
plaintiffs then filed a notice of appeal on March 9, 2021.
Since then, it appears that there has been little progress in the
case. Given the purported urgency of the case’s resolution,
the parties might “have been better served to pursue
aggressively” their claims in the district court, “rather than
apparently awaiting the outcome of this appeal” for nearly
one year. Id. at 584 (citation omitted).