On Friday, the Federal Communications Commission (FCC) was back in court to defend net neutrality from cable, telecom, and wireless trade groups that are seeking to see the regulations overturned. Those industries sued the FCC shortly after the commission voted to regulate internet providers like a utility in February. Among other things, that landmark FCC vote let the regulator require that internet providers — including wireless services — treat all legal internet traffic equally.
Three hours of oral arguments for the case were held in front of a three-judge panel at the DC Circuit Court of Appeals — the same one that has twice before struck down net neutrality regulations. But this time, things might turn out differently. When this court last struck down net neutrality rules early last year, the case hinged largely on whether or not the FCC had the authority to regulate internet providers in such a way without classifying them as a Title II utility. With the commission's vote in February, that is no longer a problem: the FCC has officially reclassified internet services as telecommunications under Title II of the Communications Act.
So this time around, internet providers are arguing that the FCC did not have the authority to reclassify internet as a "common carrier" service under Title II. Also at stake is whether wireless services should be regulated the same way as home broadband — in the past, wireless providers have been afforded extra leeway to throttle certain connections in order to maintain reliable service. The industries have tried to color the FCC's regulations as anti-entrepeneural. CTIA, the wireless association, warned in a statement that with the new rules, "Instead of letting consumers decide the success of new, innovative mobile services, government bureaucrats will now play that role." Internet providers also claim that the regulations will stifle "investment and innovation."
Judge cites Supreme Court ruling in support of FCC
The sense from those in the courtroom on Friday is that things might turn out better for the FCC this time around. Judge David Tatel, who wrote the decision striking down net neutrality last year, repeatedly referred back to a 2005 Supreme Court decision known as Brand X. In it, the highest court in the land essentially ruled that the FCC had the right under the Telecommunications Act to decide for itself whether or not broadband counts as a telecommunications service. The Supreme Court ruling offers solid support for the FCC's net neutrality vote in February.
As for the question of wireless regulation, the results seemed a bit more murky, with the judges questioning the assertion that wireless and broadband services are "functionally equivalent." However, according to Harold Feld of interest group Public Knowledge, Judge Sri Srinivasan appeared to be against the idea of different classifications for the two services. The judge asked a CTIA lawyer: "so if I’m walking in my house with an iPad — at one end of the hall I connect to my Wi-Fi, at the other end, my device switches over to my wireless subscription — did Congress really intend these two services to be regulated totally differently even if I can’t tell the difference?"
A ruling in this case isn't expected until the spring, but either way this one lands, it's likely this case will get appealed up to the Supreme Court for a final decision.