Judges grill FCC lawyer over net neutrality repeal

Judges grill FCC lawyer over net neutrality repeal
© Greg Nash

A panel of federal judges on Friday grilled the lawyer for the Federal Communications Commission (FCC) over the implications of the agency's decision to repeal its net neutrality rules in 2017.

The D.C. Circuit Court of Appeals heard oral arguments from both sides in a case challenging the FCC’s order to eliminate the rules requiring internet service providers to treat all web traffic equally.

The judges had pointed questions for both net neutrality supporters and the FCC, and it’s unclear how the three-judge panel might rule. At least two of the judges, though, seemed concerned about the repeal’s effect on public safety and how the industry might behave in the absence of FCC oversight.

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The legal battle centers in part on questions of whether the FCC overstepped its authority in reclassifying internet service providers and in preempting states from substituting their own net neutrality rules, and whether it followed administrative procedure law in carrying out the order.

“This order is a stab in the heart of the Communications Act,” Pantelis Michalopoulos, a lawyer for the public interest groups and tech companies challenging the FCC’s decision, told the court.

The agency argued that its authority to reverse course from the Obama administration’s regulatory regime is well grounded in Supreme Court precedent.

FCC General Counsel Thomas Johnson told the court that the commission believed the regulations had a “chilling effect” on the industry’s ability to innovate and invest in expanding access to broadband to underserved areas.

“The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service, and after today’s argument we continue to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today,” Matthew Berry, chief of staff for FCC Chairman Ajit Pai, said in a statement.

But the judges also seemed swayed by the arguments from Santa Clara County, Calif., which joined the lawsuit after accusing Verizon of throttling its firefighters’ data plan while they were battling the largest wildfire in state history last summer.

“One of the real problems here is that the FCC completely abdicated its responsibility to consider public safety” in repealing the rules, James William, a counsel for the county, told reporters outside the courthouse.

Judges Patricia Millett and Robert Wilkins, both Obama appointees, pressed Johnson about how the lack of conduct rules for companies like Verizon and Comcast could affect their behavior.

Millett grilled the agency on a range of issues, including why the FCC decided to reclassify the industry from telecommunications services — a tag that is applied to phone networks and carries public utility-style regulation — to information services. Millett also pressed the agency's lawyer on what she saw as vague transparency requirements imposed on broadband providers.

Johnson could not answer definitively where in the rules companies would be required to disclose whether they block, throttle or promote web content.

The lawsuit was brought by 22 state attorneys general as well as a broad coalition of consumer advocates and internet companies, including Mozilla and Etsy.

The court is expected to deliver a decision as early as this summer.

The case is only the latest high-profile legal fight over net neutrality and could reach the Supreme Court.

Updated at 4:50 p.m.