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Net neutrality goes to court

The fate of the Obama-era net neutrality rules could come down to whether the FCC followed proper procedure when it wrote and implemented its repeal of the controversial regulations.

That’s the takeaway from nearly 5-hours of oral arguments where the agency defended its “Restoring Internet Freedom” order in the US Court of Appeals for the District of Columbia Circuit Friday morning.  The case pits Mozilla and several other internet companies, like Etsy and Reddit, as well as 22 state attorneys general, against the Republican-led FCC.

It’s hard to say exactly how the the three judges on the panel — Robert Wilkins, Patricia Millett and Stephen Williams –will decide the case. Legal experts following the case are quick to point out that anything can happen and that the oral arguments are just one piece of the process, which involves thousands of pages of briefs arguing for and against the FCC’s repeal.

While the judges spent a lot of time questioning the lawyers challenging the FCC’s repeal of the rules, it’s likely that the arguments that win the day will involve whether or not the agency adequately considered concerns from the public safety community or whether the agency should have delayed implementation of its deregulation because Congress had changed a key part of the law between the time when the FCC adopted its repeal and when it went into effect.  

“It’s hard to come away with much certainty about who will be the big winner,” said Matt Schettenhelm, a legal analyst with Bloomberg Intelligence. “But the FCC should be encouraged on the question of whether it had authority to deregulate.”

Where the FCC may be more vulnerable is in its process, Schettenhelm added.

“If the court rules against the FCC, it’s likely to be because it doesn’t think it did it in the proper way,” he added. “Did they dot all their i’s and cross all their t’s.”

The case

The net neutrality proponents are suing the government claiming that the agency, led by FCC Chairman Ajit Pai, overstepped its bounds when it voted in December 2017 to roll back the Obama-era net neutrality protections, which banned broadband providers from slowing or blocking access to the internet or charging companies higher fees for faster access.

While little has happened yet, net neutrality supporters fear that the lack of protections ultimately could mean higher prices and fewer choices for consumers. Internet service providers, however, argue the rules make it harder to invest in their network and improve their ability to serve you.

Though the vote to repeal the regulations happened more than a year ago, they didn’t officially come off the books until June.  The backlash among supporters was immediate. Democrats in Congress unsuccessfully tried to undo the repeal through the Congressional Review Act. While the measure passed the Senate, it failed in the House.

Several states — including California, Oregon and Washington — have also been pushing through legislation to protect these principles. Governors in other states, like New York and Montana, have already signed executive orders banning the states from doing business with companies that don’t comply with net neutrality.

Then there are the lawsuits, which are getting their day in court tomorrow.

Behind the clash: The former, Democrat-led FCC reclassified broadband networks to make them subject to the same strict regulations that govern telephone networks. Supporters claim the reclassification was needed to give the rules an underlying legal basis.

The stricter definition provoked a backlash from Republicans, who said the move was clumsy and blunt.

Pai, who was appointed by President Donald Trump, called the 2015 rules “heavy-handed” and “a mistake.” He argued the rules deterred innovation because internet service providers had little incentive to improve the broadband network infrastructure. (You can read Pai’s op-ed on here.) Pai took the FCC back to a “light” regulatory approach, pleasing both Republicans and internet service providers.

But net neutrality supporters say there are several things wrong with Pai’s analysis and the repeal order, which also abdicated the FCC’s authority to oversee broadband networks altogether. The FCC’s order also tries to prevent states from passing their own net neutrality regulations. Net neutrality proponents say the rollback and its pre-emption of state authority is unlawful. And they’re asking the federal appeals court to throw out the FCC’s repeal.

What’s at stake, net neutrality proponents claim, is the future of the internet. They fear that without rules of the road to protect the internet as we know it may not exist much longer without the protections.

“Today we fought for an open and free internet that puts consumers first,” said Dennelle Dixon, COO of Mozilla. “We believe the FCC needs to follow the rules like everyone else. We argued before the Court that the FCC simply cannot renounce its responsibility to protect consumers on a whim. It’s not permitted by law, and it’s not permitted by sound reasoning.”

Updated 3:30 p.m. PT: This story was updated with news from the oral arguments.

Originally published January 31, 2019 at 4:29 p.m. PT

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