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The third time could be the charm for government regulators defending rules to protect an open Internet.
The Federal Communications Commission was back in federal court on Friday to defend its controversial Net neutrality regulations, which have governed how Internet traffic is treated since they went into effect in June. This is the third time the agency has been forced to defend rules it has developed to ensure broadband providers don’t monkey with consumers’ Web traffic.
The latest rules have been a lightning rod because the government has essentially applied 80-year-old telecom law to the Internet. This approach prompted the broadband and wireless industries to sue the government.
Experts think this case could be the FCC’s best chance at making its rules stick, and the outcome is critical to determining how the Internet will work in the future. The agency believes it is protecting the Internet from big businesses, while the broadband and wireless industries feel the regulations will hurt innovation and investment.
One thing is clear: The fight over Net neutrality, which has already raged for a decade, is far from over. To help readers understand what this latest chapter means to them, I’ve put together this FAQ.
What was the hearing about?
The FCC defended its rules against a lawsuit filed by telecom, cable and wireless trade groups. On Friday, a three-judge panel in the US Court of Appeals for the District of Columbia Circuit heard oral arguments and asked questions. The judges will now deliberate and likely issue an opinion in the spring.
What’s the legal question?
In the air is whether the FCC has the authority to change the classification of broadband, which it did to ensure the rules could stand up to court challenges. Under the new rules, broadband is under the same legal classification as the traditional telephone network, giving the agency more regulatory power.
Industry groups claim the agency’s new classification of broadband is illegal and want the new rules thrown out.
The FCC, which has tried to impose Net neutrality rules twice before under broadband’s old classification, argues that it had to redefine the service in order to survive legal challenges.
What does this mean for me?
The court upholding the FCC’s order would mean a victory for Net neutrality advocates. Broadband providers will not be able to block or slow down your access to the Internet. They will also not be able to charge companies like Netflix a fee to deliver service faster to you. An upholding of the agency’s rules could also mean that the agency still has authority to determine whether future practices like T-Mobile’s “BingeOn” video-streaming service are kosher.
How is the case likely to shake out?
It’s impossible to predict how the court will rule. But following the oral arguments, experts think the FCC has the upper hand.
Minutes into the industry lawyer’s opening statements, Judge David Tatel set the tone for the three-hour hearing, pointing to case law that favors the FCC’s position. He cited a Supreme Court opinion in 2005 that gives the agency the authority to categorize communications services anyway it sees fit.
The comments from Tatel are important because he was the judge who ruled against the agency in its two previous Net neutrality cases. What’s more, in his 2014 opinion that threw out the agency’s 2010 rules, Tatel acknowledged a need for Net neutrality protections. But he also said he didn’t agree with the FCC’s argument because the agency was inappropriately trying to apply telecom regulations.
So it’s a slam dunk for the FCC?
Not necessarily. Other pieces may not stand up. For instance, there were questions about whether the FCC has the authority to treat wireless service the same way it treats wired broadband.
What this means is that the court could side with the agency or shoot down parts of the order. But the reclassification bit is the critical element.
“It would make it clear that at least the wired Internet can be classified under traditional telecom regulation, where the FCC”s authority is arguably the greatest,” said Matthew Schettenhelm, a litigation analyst with Bloomberg Intelligence.
What’s next?
Many legal experts expect that any decision will likely be appealed. Whether it’s the industry or the FCC that comes out the winner, the side that loses will likely appeal to the US Supreme Court. It’s difficult to say whether the highest court in the land would take this case, but it’s possible that the Supreme Court could get the last word on the agency’s authority, ultimately deciding whether the Net neutrality rules stand.
Of course, if and when the FCC gets to enforce its regulations, there will likely be lawsuits attacking the agency on how it applies these rules.
