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

The entrance to the Federal Communications
Andrew Harnik/AP/REX/Shutterstoc

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Since the rules were repealed in late 2017, pro-net neutrality activists, state attorneys general, Democratic leaders, and companies like Mozilla have challenged the FCC’s action in court.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

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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.