Fate of FCC’s Net Neutrality in Federal Court

Posted December 3, 2015 at 12:41pm

A federal court will hear arguments Friday in a lawsuit that challenges the Federal Communications Commission’s net neutrality rules. It is a high-stakes case that is likely to touch on free speech and is expected to affect how the Internet works in the future.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is expected to hear more than two hours of oral arguments from proponents and opponents of the rules that went into effect in June. A court ruling, which likely won’t come until sometime in early 2016, could have broad implications for consumers’ access to online content and what Congress does about overhauling the 1934 Communications Act (PL 73-416) and the 1996 law that updated it (PL 104-104).  

The Federal Communications Commission in February claimed authority to regulate Internet services under Title II of the 1934 law, in which Congress granted the FCC power to oversee telecommunications. That claim is at the heart of the lawsuit. 

The FCC’s Open Internet Order is designed to prevent Internet service providers such as Comcast and Verizon from discriminating between content creators. Supporters of the rules, including President Barack Obama, further argue the rules are needed to prevent Internet service providers from demanding payment from content creators such as Netflix to ensure that their Web pages are delivered more quickly to users.

Broadband providers and industry groups, however, counter that Congress did not authorize the FCC to regulate Internet services, and they say the rules will stifle investments in their networks.


Continuing Battle

It’s not the first time the FCC’s efforts to ensure net neutrality have come before the D.C. court, which struck down previous attempts in 2010 and 2014. There will be a familiar face on the panel hearing the case, too: Judge David S. Tatel wrote the opinions in both of the previous cases.

The FCC contends that the court set a roadmap for the agency in 2014 after ruling that parts of its 2010 order mandating net neutrality were invalid because the agency didn’t have authority over Internet service providers. The FCC has since reclassified Internet services as telecommunications services and moved ahead with regulation under the Communications Act.

That move by the FCC in February stalled efforts by some lawmakers to overhaul the law, which governs the FCC and its regulation of communications services including radio, television and telephones. Now, the senators and representatives who had been exploring an overhaul are waiting to see how the court will decide the FCC’s use of that law for its regulation of the Internet.

But the net neutrality rules did spur Republican lawmakers into action on something else: they added riders to the 2016 Financial Services spending bills that would limit the FCC’s ability to enforce the Open Internet Order.

More than 20 Republicans in Congress also wrote in a brief that the court should overturn the rules. They argued Congress didn’t and wouldn’t leave the issue of Internet regulation to the FCC.

Meanwhile, Democrats have sided with the commission. Thirty lawmakers, including Democratic presidential candidate Sen. Bernard Sanders, I-Vt., filed a brief in support of the regulators. The FCC “has done precisely what Congress intended the Commission to do” by reclassifying Internet service as a telecommunications service, they wrote.


First Amendment Debate

The issue of reclassifying Internet services as a telecommunications service will be the first issue argued Friday in court and will receive the most amount of time, with a full hour of debate.

But briefs that raised questions about First Amendment rights of free speech have also sparked interest, prompting the court to allow 20 minutes for arguments. If the court chooses to address the issue in its decision, it could have major implications for how the Internet functions.

Internet service providers say the Open Internet Order violates their right to free speech. The FCC and its supporters also cited the First Amendment in their response, saying that providers are not engaging in free speech when they transmit information.

At stake is whether Internet service providers such as Comcast and Verizon are gatekeepers controlling the flow of content or if they are just conduits that have to provide equal treatment to all content.

A court ruling in favor of the broadband providers on this particular issue could essentially say that transmitting data is a form of free speech in which the FCC can’t interfere.

This corrects to say that the court scheduled 20 minutes for free speech arguments.