Despite Senate victory, court battle looms for net-neutrality rules

Advocates of the Federal Communications Commission's net neutrality rules celebrated a major victory on Thursday as the Senate rejected a Republican bid to repeal the rules.

But with a lawsuit pending in the D.C. Court of Appeals, the victory may prove to be short-lived.

The rules, approved by the FCC in December, prohibit Internet service providers from slowing down or blocking access to legitimate websites. Supporters of the rules say they preserve competition and consumer choice, but opponents argue they are an unnecessary burden on businesses and amount to government control of the Internet.

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The House passed a resolution in April to overturn the rules, but the measure failed in the Senate on a vote of 52 to 46. Except for two absences, all of the Republicans voted to repeal the rules, and all of the Democrats voted to maintain them.

The rules' advocates quickly proclaimed victory. An FCC spokesman said the vote was "a win for consumers and businesses." On the White House Twitter account, President Obama wrote, "The open internet is essential for American jobs & society. Glad to see the Senate reaffirm balanced #netneutrality rules."

But Larry Downes, a senior fellow at the think tank Tech Freedom and an opponent of the rules, said the real threat to the regulations was never the vote in Congress. Obama had threatened to veto the resolution if it had cleared the Senate, so Downes said the vote was mostly symbolic.

"The legal challenges have always been the real source of concern," he said.

Verizon has filed a lawsuit in federal court, arguing that the FCC overstepped its authority by trying to regulate broadband Internet service.

The prospects for Verizon's lawsuit got a boost last month when a judicial panel randomly assigned the case to the D.C. Circuit Court of Appeals. That same court ruled against the FCC when it tried to enforce the principle of net neutrality against Comcast last year.

The FCC sanctioned Comcast for slowing down users' access to file-sharing site BitTorrent, arguing it violated an FCC policy statement. Comcast appealed the sanction, and the court sided with the Internet provider, ruling that the FCC acted outside its legal authority. 

The FCC enacted its net-neutrality rules after the Comcast ruling, but Downes said the fact that the principle is now an official rule is unlikely to have much effect on the outcome in court.

The real issue is whether the FCC has the authority to regulate broadband Internet service at all, he said.  

The D.C. Court of Appeals will randomly select three of its judges to hear the Verizon suit, so the judges may not be the same ones that ruled in the Comcast decision. 

"The D.C. Circuit has a mix of judges," Downes acknowledged, but he said the makeup of the panel is unlikely to determine the outcome of the case. Whichever judges are selected, they will be expected to respect the precedent set by the earlier panel's decision in the Comcast case.   

"Most of the decision will come down to how they read the Comcast decision," Downes said.

Art Brodsky, a spokesman for media reform group Public Knowledge, which supports the rules, acknowledged that Verizon's case poses a serious threat to the regulations.

"I wouldn't know which way to bet," he said.

But he noted the FCC applied different legal reasoning to support its net-neutrality rules than it used in the Comcast case. 

"[The FCC] obviously had the Comcast case in mind when they drafted the open internet rules," Brodsky said. The new legal reasoning could persuade the judges, Brodsky said.

If the court strikes down the net-neutrality rules, the FCC could choose to re-classify broadband Internet as a "telephone service" as opposed to an "information service." The FCC has a much broader authority to regulate telephone companies. 

"We wouldn't be battling over this if Title II were in effect," Brodsky said, referring to the provision which gives the FCC authority to regulate telephone services. 

He noted that the FCC only classified broadband as an information service in 2005. 

When asked whether it would be likely for the FCC to start a political battle by trying to re-classify broadband, Brodsky said, "It depends on how brave the commission is."