Net Neutrality Back in Court: Takeaways From Marathon Oral Arguments

The entrance to the Federal Communications
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WASHINGTON — Net neutrality was back before the D.C. Circuit Court of Appeals on Friday, in what was an oral argument marathon: four hours, largely devoted to complex issues of the FCC’s authority, past court precedent, and how those decisions have been interpreted.

The legally wonkish nature of the proceedings belied the more simple characterizations of what was at stake. Sen. Ed Markey (D-Mass.), who was there, posted a Twitter video in which he said “the case is the most important in the history of the internet.”

At issue is the FCC’s 2017 repeal of a robust set of net neutrality rules, which prohibit websites from blocking or throttling traffic, or from selling off “lanes” of traffic that will advantage some content players and disadvantage others.

The Republican-led FCC said rolling back the rules was necessary because the regulations were choking off investment and threatened the deployment of broadband. But a collection of internet companies, state attorneys general, Democratic lawmakers, and public interest groups took the FCC to court in an effort to get the rules restored.

Judges Patricia Millett and Robert L. Wilkins, two Obama appointees, had some significant skeptical questions of the FCC, while Stephen F. Williams, a Reagan appointee, seemed more amendable to the rationale for the agency’s action. Given the many issues at play in this case, it’s a bit of a fool’s errand to try to glean from their questions just what kind of opinion they will ultimately write.

Here are a few takeaways:

Telecommunications vs. information: The FCC’s general counsel Tom Johnson argued that it was within the agency’s purview to reclassify the internet as an information service, reversing an Obama-era FCC decision that deemed broadband carriers as telecommunications providers. It’s an important regulatory distinction, as the former limits the FCC to light-touch regulation, and the latter allows for a robust set of rules.

Pantelis Michalopoulos, representing Mozilla and other plaintiffs, argued that classifying the internet as an information service just didn’t make sense, as ISPs provide the means of transmission, but not the actual information that is being sent. He said deeming internet service as information is “like a surrealist painting which shows a pipe and captions it, ‘This is not a pipe.'”

That was just one of a number of analogies used throughout the day. At one point, Michalopoulos and Judge Williams offered competing examples of pizza delivery options as ways to explain the current internet ecosystem.

Johnson argued that there is enough ambiguity in the Telecommunications Act to leave it up to the FCC to decide — and the Supreme Court upheld that view in a 2005 decision.

The FCC argued that an ISP still “inextricably intertwines” the transmission of information and the processing of it. In their view, the information aspect of broadband service comes via domain name services and caching.

Yet Johnson was still grilled by Judge Millett on how internet service could be classified as “information” when telephone service is deemed “telecommunications.”

“It is the functionality that the end user has in navigating the internet, in having access to email websites, the ability to create and generate content,” he said.

Millett still challenged the distinction. “Telephone service is constantly used to acquire information, and to share information.” She pointed to the example of calling her pharmacy.

“If I would like to have something refilled, I can call over the phone, push buttons and eventually I will have a prescription refilled,” she said. “I can also go onto the website and type in that I want a prescription refilled. But it seems to be the exact same functionality. One is voice and one is typing.”

Backstops: The FCC argues that competitive pressures, antitrust laws, and consumer protection regulations still provide a backstop to prevent ISPs from engaging in bad behavior. The FCC also left in place a transparency rule that allows for ISPs to engage in such things as “paid prioritization” as long as they disclose it to their users.

Millett, however, pressed the FCC’s attorney on how something like antitrust law would prevent an ISP from blocking content based on what it deems objectionable.

“The theory of the order is, if the market is adequately policed by consumer protection and competition authorities, then providers will give consumers what they want,” Johnson responded.

He argued that the market is getting more competitive, even as net neutrality advocates contend that users still face few choices when it comes to high-speed internet service.

Public safety: The FCC’s attorney faced his toughest questions when it came to what impact the repeal of the rules would have on emergency services.

The county of Santa Clara, Calif., joined in the lawsuit against the FCC after an incident last summer in which Verizon slowed internet speeds as county firefighters were battling wildfires.

Millett raised the prospect that by allowing paid prioritization, ISPs would slow traffic for others on the internet. She said that would be an issue for emergency service personnel who were “trying to share photos as fast as they can as they are chasing a fleeing fugitive.”

“They may need things that require a lot of bandwidth with this. They are not going to be able to go first, they will have to go to the end of the line,” she said.

She said it wouldn’t matter if emergency personnel could complain to the Federal Trade Commission, as “post hoc remedies don’t work in the public safety context.”

Johnson said by allowing for paid prioritization, ISPs could offer dedicated networks devoted to emergency services or telemedicine.

Millett, though, still questioned whether municipal governments could afford such fast lanes of traffic.

State laws: After the FCC repealed the rules, a handful of other states stepped in to fill the void. They passed their own set of net neutrality laws, with California adopting the strictest set of regulations.

But when they rolled back the rules in late 2017, the FCC also said state and local governments would be prohibited from placing rules on ISPs. They argue that it’s entirely in their purview, as internet service crosses state lines and is interstate commerce.

Steven Wu, representing the state plaintiffs in the case, said the FCC’s actions were contradictory. In repealing the net neutrality rules, they were also stripping itself of authority to prevent states from imposing their own.

“Those two propositions cannot be taken at the same time,” he said.

Judge Wilkins, though, questioned that reasoning. He asked whether it was an “anomalous situation” in which a federal agency is restricted from imposing the rules, but state and local governments “can just have at it.”

Wu argued that it would run counter to notions of federalism.

The judges are expected to issue a decision by the summer.