Net neutrality goes on trial

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The strongest U.S. Internet regulations ever written will face their day in court on Friday.

Internet service providers like AT&T are hoping to have the U.S. Court of Appeals for the D.C. Circuit strike down the Federal Communications Commission’s (FCC) net neutrality regulations, just as it did to a pair of prior iterations of the rules.

{mosads}Asked earlier this year if the agency had a plan for that scenario, FCC Chairman Tom Wheeler answered bluntly, “Not to lose — that is the short-term plan.”

In legal terms, the case has moved swiftly to arguments after the FCC regulations went live in June. And given the case’s high profile, many observers believe it could eventually land at the Supreme Court.

The FCC has touted the rules as a win for consumers, contending they will prevent Internet service providers from blocking, slowing or charging high prices for access to fast lanes for any piece of Internet traffic.

Internet companies like Netflix, Twitter and Etsy helped push for the increased authority, in which the FCC reclassified Internet service as a telecommunications service, rather than its previous designation as a less-regulated information service.

Reclassification brought with it common carrier regulations, which the FCC tailored to apply to the Internet. However, critics equate the rules with burdensome utility-style regulations.

Companies like AT&T, Verizon and Comcast, who own the cables that transfer Internet traffic to and from customers’ homes, have blasted the FCC for subjecting a dynamic service like the Internet to regulations that were originally designed to regulate monopoly telephone companies.

“The fact that the FCC has suddenly discovered that so many longstanding statutory interpretations and prior orders, adopted on independent rationales over several decades, are now simultaneously ‘incorrect’ precludes any deference and exposes the FCC’s about face for what it is,” a group of telecom trade groups told the court earlier this year.

Friday’s oral arguments come at a time when net neutrality advocates are stoking their base ahead of a government spending debate. However unlikely, advocates have increasingly warned about a net neutrality rider slipping into the spending bill, and have encouraged supporters to inundate lawmakers’ offices with calls.

The court has signaled the importance of its eventual decision by blocking off two hours and 20 minutes for the debate. Some expect it to go longer.

The crux of the arguments will focus on whether Congress left it to the FCC to determine the classification of Internet service and whether the FCC’s apparent reversal is justified by the facts on the ground.

Only a decade ago, a Republican-led FCC was before the Supreme Court making a near-opposite argument of why Internet service should be classified under the less restrictive authority.

The appeals court struck down the commission’s 2010 net neutrality rules last year. Judge David Tatel, who wrote last year’s opinion and is again sitting on the three-judge panel, ruled the commission treated Internet service like a common carrier but chose not to classify it that way.

The FCC believes Tatel’s opinion gave blessing to reclassify Internet service, but critics of the new rules say the judge offered a less restrictive path forward that the commission chose not to adopt.

“The FCC’s rejection of that path demonstrates that this case is not about ‘openness’ but rather the FCC’s unlawful attempt to assert broad public-utility regulatory authority over the Internet,” critics told the court.

The court will also hear arguments specifically about mobile broadband, which is subject to net neutrality rules for the first time under the order.

Other arguments will hit on whether the rules violate the First Amendment, which some critics allege. Similar arguments were raised against previous rules, but the court failed to address them at the time.

Daniel Berninger, a lawyer who will argue against the rules Friday, previously told the court that the rules “compel providers to carry all speech, including political speech with which providers disagree.”


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