Net neutrality fight returns to court

Net neutrality supporters will get their day in court this week as they challenge the Federal Communications Commission’s (FCC) repeal of the popular Obama-era internet rules.

A panel of federal appeals court judges will hear oral arguments Friday in a lawsuit challenging the FCC’s deregulation of the broadband industry. The court date comes more than a year after the agency voted to roll back the rules requiring internet service providers to treat all web traffic equally.

Approved by the FCC under the Obama administration in 2015, net neutrality regulations prohibited companies like Verizon and Comcast from blocking or throttling content and from charging websites for faster speeds.

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Shortly after the commission voted to roll back the rules in December 2017, a coalition of consumer advocacy groups, internet companies and Democratic state attorneys general sued the agency, asking the D.C. Circuit Court of Appeals to vacate the repeal and reinstate the 2015 rules.

They argued that the rules ensured a free and open internet and prevented broadband companies from discriminating against certain content or giving certain websites preferential treatment.

“The FCC’s net neutrality repeal was both misguided as a matter of policy and unsound as a matter of law,” Sarah Morris, the deputy director of New America’s Open Technology Institute, said on a call with reporters Wednesday. “In the absence of net neutrality rules consumers are at the mercy of their internet service providers who have a well-documented history of interfering with access to content.”

FCC Chairman Ajit Pai, a Republican, has argued that the rules were overly cumbersome and that existing consumer protections and antitrust laws are sufficient to deter internet providers from abusing their power.

Republicans on the commission have also taken issue with the way the 2015 order classified internet providers as telecommunications services, a move that opened them up to further regulations.

The agency is confident it will succeed in court.

In a statement to The Hill, Pai’s chief of staff, Matthew Berry, said legal precedence has given the agency ample discretion to repeal the rules.

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“The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service, and we have every reason 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,” Berry said.

The courts have taken up net neutrality multiple times since the mid-2000s. Most recently, the D.C. Circuit in 2016 upheld the FCC’s decision to implement the rules in the face of a legal challenge from the industry. Last year, the Supreme Court chose not to review the decision, largely because two conservative justices — John Roberts Jr. and Brett Kavanaugh — recused themselves from the vote.

The case that will be heard before the D.C. Circuit on Friday is not the only legal battle over net neutrality that has sprung up since the repeal.

In the absence of federal rules governing internet providers’ conduct, a wave of states across the country rushed to implement their own laws and executive orders codifying net neutrality principles. Those actions came despite the FCC preempting state regulations in its repeal order.

After California passed what many supporters saw as the gold standard for state net neutrality laws, the Department of Justice sued, arguing that it was in defiance of the FCC’s rules. The two sides called a truce in the legal battle over the FCC’s preemption authority, with California agreeing not to enforce the new law until the D.C. Circuit reached a decision in the main challenge to the repeal.

On Friday, each side will make their case before a panel of three judges: former President Obama appointees Patricia Millet and Robert Wilkins as well as Stephen Williams, who was nominated by former President Reagan.

Andrew Schwartzman, a law professor at Georgetown University, said it is difficult to predict how oral arguments and appellate cases will unfold, but Williams has generally been suspicious of what he sees as regulatory overreach while Millet is well-steeped in administrative law and has generally been more favorable to agencies in her rulings. Wilkins, Schwartzman said, is harder to gauge.

“I would be watching Judge Wilkins in particular to see how friendly or aggressive he is with each side” during oral arguments, he said.

The panel could reach a decision by the summer, and the range of potential outcomes include reversing the FCC’s order, upholding it or myriad other possible remedies. Those could range from asking the FCC to revisit its decision to the court undertaking an extended judicial review of the evidence. 

The case could also eventually make its way before the Supreme Court.

The stakes are high for both sides, with both supporters and opponents eagerly anticipating Friday’s arguments.

So far, there has been little to indicate which way the circuit court judges are leaning.

“There are so many different possibilities for partial reversals and affirmances that it’s impossible to speculate,” Schwartzman said. “It’s a fool’s errand to try to suss that out beyond a certain point.”