Internet providers suing the Federal Communications Commission to overturn net neutrality rules got their day in court today as oral arguments were heard by a three-judge panel at the US Court of Appeals in Washington, DC.
A decision might not come for months, but net neutrality supporters said the judges’ questions indicate that a ruling may defer to the FCC’s determination on the crucial question of whether Internet providers can be reclassified as common carriers. Opponents of the net neutrality rules believe the judges are skeptical about some of the FCC’s arguments, however.
The FCC’s decision to impose common carriage restrictions on Internet providers hinges on whether they can be considered “telecommunications services,” as opposed to more lightly regulated “information services.” ISPs argue that Internet access is properly defined as an information service, but ultimately the FCC may have the discretion to make that decision.
“The argument started off in a way that we took to be quite hopeful,” according to attorney Kevin Russell, who is representing consumer advocacy groups and other interveners who support the FCC’s rules. Ars didn’t attend the court hearing but spoke with Russell and other case participants on a call with reporters afterward.
Appeals Court Judge David Tatel “ask[ed] the challengers whether the Supreme Court hadn’t already decided most of the case in a prior decision called Brand X, which he suggested was best read to say that the commission gets broad authority to decide how best to classify these kinds of services,” Russell said.
Judge Tatel is no stranger to the relationship between net neutrality rules and the FCC’s Title II authority to regulate common carriers. Tatel wrote the appeals court decision in January 2014 that threw out the FCC’s previous attempt to impose net neutrality rules on Internet providers.
That ruling said the FCC’s net neutrality rules prohibiting blocking, throttling, and paid prioritization were per se common carrier obligations, and vacated the rules because the FCC hadn’t chosen to classify broadband providers as common carriers. The FCC reclassified the providers as common carriers in February of this year in order to impose a similar set of rules. FCC Chairman Tom Wheeler has said the reclassification fixes the problem that doomed the first set of net neutrality rules.
A First Amendment right to edit the Internet?
Judges today also seemed skeptical of the argument that net neutrality rules violate ISPs’ First Amendment rights, said Public Knowledge Senior Staff Attorney John Bergmayer.
“I don’t think they’re going to go anywhere because the judges asked some very skeptical questions about them that show they don’t really buy into the First Amendment argument,” Bergmayer said. “One of judge Tatel’s responses showed a very deep understanding of the nature of the kind of networks ISPs provide, which is they provide other people speech and in exchange they’re not considered to be speakers.”
This is “one of the most foundational tradeoffs in communications policy,” that network operators have to treat traffic equally but can’t be held responsible for libel or other illegal activity that happens over the network, Bergmayer said.
Interconnection and mobile rules face scrutiny
Potential problem areas for net neutrality proponents include the FCC’s assertion of authority over interconnection disputes, the application of net neutrality rules to mobile networks, and questions about whether the FCC provided the public enough notice before enacting its rules.
The “judges seemed particularly hostile to rules on interconn[ection] and mobile on both notice and substance,” tweeted Doug Brake, a telecom policy analyst at the Information Technology and Innovation Foundation, which opposed the FCC’s rules.
Additionally, Judge Stephen Williams “seemed clearly to have an issue with the FCC’s ban on paid prioritization,” Multichannel News reported. “He said that ban could wind up sweeping up harmless conduct, and seemed perturbed that the FCC had not responded to those who suggested there were less regulatory ways to achieve the same goal.”
“The rigorous questioning on multiple elements of the Order exposed many holes in how it was crafted,” one “cable source in the courtroom” was quoted as saying by Multichannel News. “The FCC didn’t have good answers on the proper notification issues that were raised which could mean the entire Order is in trouble. The FCC especially fared poorly on interconnection and mobile broadband arguments.”
Cable and wireless trade groups make their plea
CTIA-The Wireless Association, which sued the FCC on behalf of mobile carriers, offered a short statement after the hearing. CTIA claims to “support an open Internet” but believes wireless networks should be treated differently from mobile ones.
“Today, we made our case to the court that imposing monopoly-era rules on the wireless industry is unlawful and a step in the wrong direction,” said CTIA CEO Meredith Attwell Baker, a former FCC commissioner and Comcast executive.
National Cable & Telecommunications Association CEO Michael Powell, a former FCC chairman, said that today’s arguments make clear that Congress should be the entity to decide the issue. “Because of the complexity and potential patchwork outcome of the legal process, the best solution is for Congress to enshrine important net neutrality protections into law and eliminate the negative consequences and continuing uncertainty caused by the FCC’s decision to put the modern Internet under an antiquated regulatory regime,” he said.
Judges asked the FCC to justify its regulation of interconnection disputes, such as the one in which Comcast demanded payment from Netflix for a direct connection to the ISP’s network. Skeptical questions centered on why the FCC should help companies like Netflix in business disputes, Russell said. FCC attorneys answered that the purpose of interconnection oversight is to make sure that home Internet customers can use services they pay for.
The judges “seemed responsive to the argument that the duty to provide a service to consumers included protecting against any harms to the consumer’s service that would result from something that happened at the point of interconnection,” said Sarah Morris, senior policy counsel at the New America Foundation’s Open Technology Institute.
The decision to reclassify mobile broadband as a common carrier service apparently received greater scrutiny than the reclassification of home Internet service.
Judges “did not question the commission’s determination that we need to apply the same rules to mobile both in order to protect users’ ability to have access to the Internet sites they want and to promote investment in the app economy,” Russell said. But the judges did ask technical questions about whether the FCC had provided enough notice to the public before reclassifying mobile, and “whether this service met some statutory definitions that, as one of the judges noted, were written in a time when mobile service not about data,” he said.
Judges could decide that there should be another opportunity for public comment, and remand the issue to the FCC without vacating the rules. If judges go further and decide that the FCC’s legal justification was flawed, the commission would have to “go back to the drawing board with respect to mobile,” Russell said.
In a best case scenario for the FCC, judges could decide that the commission provided enough public notice and properly justified the reclassification of mobile.
Russell said he is optimistic in part because Judge Sri Srinivasan “asked the other side the question, why does it make sense for my carrier to throttle or block my access to a website when my iPad is connected to a wireless mobile network, but not when it is connected to Wi-Fi?”