×

What’s at Stake in the Latest Courtroom Showdown Over Net Neutrality

WASHINGTON — The future of net neutrality once again will come before a federal court on Friday, the latest legal showdown over just what types of rules of the road should dictate how internet providers deliver content to customers.

At issue is the Republican-led FCC’s rollback of most of the Obama-era FCC rules that prohibit internet providers like AT&T and Comcast from blocking or throttling traffic, or from selling so-called “fast lanes” so major content companies can get speedier access to consumers.

Since the rules were repealed in late 2017, pro-net neutrality activists, state attorneys general, Democratic leaders, and companies like Mozilla have challenged the FCC’s action in court.

This is only the latest chapter in the long, long net neutrality debate, but the controversy only seems to have gotten louder and more strident. We’ve seen everyone from Santa Clara, Calif., firefighters to Burger King sound the alarm over the need for net neutrality regulation.

Meanwhile, the FCC’s chairman, Ajit Pai, has defended his action, and he and others have said the fears of deregulation have been vastly overblown, as the broadband ecosystem is hardly on the brink of collapse.

The politics of net neutrality, though, have been far flashier than some of the wonkish legal arguments that likely will dominate Friday’s hearing.

The FCC’s rollback in 2017 included switching the classification of internet service from a “telecommunications” provider to an “information” service. The former gave the FCC the ability to impose a robust set of rules; the latter limits it to light touch regulation.

As the sides go before a three-judge panel in Washington, here’s a glance at what to expect:

The arguments: Net neutrality advocates say the FCC’s classification of broadband as an “information” service just doesn’t make sense. In court briefs, they argued that ISPs like Comcast, AT&T, and Verizon are providing the means of delivery of email, video, voice, and other traffic, but not the content itself.

“None of Comcast, AT&T, or Verizon adds scenes to the movies we watch online or embellishes our friends’ notes on a social media ‘wall,'” Mozilla and other plaintiffs said in their opening brief.

Their briefs make ample use of analogies to make their point. Example: “A road laid by a construction company to reach a cluster of hotels built by third-party entrepreneurs cannot reasonably escape classification as a road by being labeled a hotel instead.”

“Both the plain language [of the law] and congressional intent make it clear that broadband access is a telecommunications service,” Sen. Ed Markey (D-Mass.) said in a conference call with reporters this week.

Plaintiffs also believe that they have court precedent on their side, as the D.C. Circuit in 2016 upheld the Obama-era FCC’s basis for imposing strong net neutrality rules.

The plaintiffs said the Republican-led FCC “wrongly found” that a reason to get rid of the net neutrality rules was because they were choking off investment, and point out that a number of ISP executives have contradicted that claim in public statements.

For its part, the FCC believes that it was entirely within their purview to roll back the rules.

“While it reflects different judgments than the Commission made in 2015, the Commission had ample discretion, following a ‘change in administrations,’ to reevaluate its policies,” the FCC said in its brief.

It cites a 2005 Supreme Court decision, which deferred to the FCC when it came to deciding whether the internet was an information service. The internet has changed quite a bit since then, but the FCC said in its brief that broadband service still “inextricably intertwines” transmission of information and the processing of it. In their view, the information aspect of broadband service comes via domain name services and caching.

“The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service, and we have every reason to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today,” said Matthew Berry, FCC chief of staff.

In its brief, the FCC also said in its brief that it “reasonably found” that the previous set of net neutrality rules “discourages broadband investment and deployment.” Even without those regulations, the FCC said, protections were still in place via antitrust and consumer protection laws and a transparency requirement.

The judges: Patricia Millett and Robert Wilkins are Obama appointees; Stephen F. Williams is an appointee of President Ronald Reagan. Williams was on the three-judge panel when the Obama-era FCC rules came before the court in 2016, and he was the lone dissenter.

The states: Also at issue is the FCC’s pre-emption of laws at the state level that place restrictions on internet service. After the FCC’s repeal, California, New Jersey, Oregon, Vermont and Washington passed net neutrality laws or resolutions. The strictest of those, in California, is on hold until the lawsuit is resolved.

The decision: If the court rules in favor of the plaintiffs, there is some question of whether that would automatically mean that the old net neutrality rules would be restored. Net neutrality advocates believe so, but that would largely depend on what the judges say in their opinion. The FCC can appeal to a larger en banc panel and to the Supreme Court.

If the court upholds the FCC’s action, the plaintiffs also would likely appeal, but there it also could change the dynamics in Congress. Democrats could see a greater sense of urgency to work with Republicans on net neutrality legislation.

Popular on Variety

More Politics

  • Cardi BSwisher Sweets Spark Award, Arrivals,

    Cardi B Talks Police Brutality, Student Debt With Bernie Sanders in Nail Salon

    Rapper Cardi B hosted Senator Bernie Sanders for a video interview at The TEN nail bar in Detroit, an appropriate venue for a musician known to sport some serious claws. Cardi and the 2020 presidential candidate discussed everything from reinstating and expanding the DACA program to fixing student debt by placing a “modest” speculation tax [...]

  • Jeffrey Epstein

    Jeffrey Epstein Autopsy Reportedly Finds Broken Bones in Neck

    Jeffrey Epstein’s autopsy results suggest that the the disgraced multimillionaire sustained multiple breaks in his neck bones, according to The Washington Post. The report says one of the bones broken was the hyoid bone, which is near the Adam’s apple in men. Although hyoid breaks have been known to occur during a hanging, experts told [...]

  • Asap Rocky1 Oak : Gotha Takeover

    A$AP Rocky: A Swedish Take on the Case That Riveted the Country

    With everyone from President Donald Trump to the Rev. Al Sharpton weighing in on rapper A$AP Rocky’s detention in Stockholm after his involvement in a street brawl there, this peculiar saga seemed tailor-made for summer’s silly season. But in Sweden it has also sparked debate about some serious issues – such as the nature of [...]

  • United States Attorney for the Southern

    Jeffrey Epstein Autopsy Results 'Pending Further Information' Following Examination

    Jeffrey Epstein’s autopsy results are “pending further information,” according to a statement from the New York City Medical Examiner’s office. “Today, a medical examiner performed the autopsy of Jeffrey Epstein. The ME’s determination is pending further information at this time,” chief medical examiner Dr. Barbara Sampson said in the statement. Sampson also confirmed the presence [...]

  • Equinox fitness protest

    Protesters Chant 'Trump Has No Soul' at West Hollywood Equinox

    A small protest erupted outside of Equinox Fitness in West Hollywood Friday afternoon following the outcry over a big-dollar fundraising event for President Trump organized by billionaire Stephen Ross, chairman of Equinox owner Related Companies. Approximately 20 people gathered at the Sunset Boulevard protest coordinated by Gonzalez Garcia and his friend Adam Bass. Garcia and [...]

  • Donald Trump Hollywood Racism

    Donald Trump Blasts Hollywood for 'Racist' Films

    UPDATED: Donald Trump blasted Hollywood as “racist” outside the White House on Friday morning, adding that the industry is doing a “disservice” to the country. His remarks come amid controversy over “The Hunt,” the Blumhouse film about elite vacationers hunting down blue-collar whites for sport. The film has generated backlash on Fox News and other [...]

More From Our Brands

Access exclusive content