Net Neutrality?s big day in court

The Federal Communications Commission (FCC)defended its net neutrality rules before the U.S. Court of Appeals of the District of Columbia Circuit against telecommunications, cable, and wireless trade groups on December 5. The central issue of the case is whether the FCC has the authority to classify the Internet as a Title II telecommunications service, and the result will determine whether the FCC, after ten years, has finally found a sound legal basis to protect consumers’ open Internet experiences.

In late February, the FCC voted 3-2 to impose net neutrality rules to prohibit broadband providers from blocking or slowing Internet content flowing through their networks to consumers. Basically, the rules ensure that ISPs allow all online content to load at the same speed. U.S. Telecom, a trade group that includes AT&T and Verizon,filed a petition at the US Court of Appeals against the rules, calling them “arbitrary, capricious, and an abuse of discretion as well as a violation of existing law.”

The hearing lasted more than three hours and the three-judge panel heard arguments for and against the rules. The FCC argued that rules protecting an open and fair Internet spur innovation and encourage broadband investment. The FCC told the Court that Internet access is a telecommunications service because ISPs transport -- but do not transform -- Internet content that flows over their networks. The ISPs countered that in fact they do exercise some control in managing the transmission of Internet data, making Internet access a more lightly regulated information service.

The New York Times reported that Judge David Tatel of the United States Court of Appeals of the District of Columbia Circuit “pointed several times to case history that supports the FCC’s move to regulate broadband services like utilities. He said an opinion by the Supreme Court in 2005 gave the FCC the ability to categorize communications services as it sees fit.

While, it is difficult to predict a ruling, Judge David Tatel wrote the opinions in 2010 and 2014 that threw out earlier FCC attempts to codify Open Internet rules. In 2014, Judge Tatel’s opinion seemed to indicate that Title II re-classification of Internet access would provide a more solid legal grounding for the FCC’s Open Internet rules. Still, the Times acknowledged that “reading the tea leaves from a court hearing is a dangerous endeavor.” A decision in this case is expected in the spring. Should US Telecom lose the case, experts expect the trade association to appeal to the Supreme Court.

What do you think: will the Court of Appeals uphold the net neutrality rules?

U.S. appeals court hears challenge to net neutrality rules (Reuters, Dec. 4, 2015)

Telecom trade group challenges new net neutrality rules (Speed Matters, Mar. 26, 2015)

Open Internet rules now in effect (Speed Matters, June 15, 2015)

In Net Neutrality Hearing, Judge Signals Comfort With F.C.C.’s Defense (New York Times, Dec. 4, 2015)