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3 Key Questions about the Upcoming Net Neutrality Court Fight

FCC Chairman Tom Wheeler

FCC Chairman Tom Wheeler // Lauren Victoria Burke/AP

Three fed­er­al judges will hear ar­gu­ments Fri­day in a case that could have far-reach­ing im­plic­a­tions for the fu­ture of the In­ter­net.

Law­yers for the Fed­er­al Com­mu­nic­a­tions Com­mis­sion will ap­pear be­fore a pan­el of the D.C. Cir­cuit Court of Ap­peals to de­fend their net-neut­ral­ity reg­u­la­tions from law­suits filed by an ar­ray of In­ter­net pro­viders and in­dustry as­so­ci­ations.

Sup­port­ers of the reg­u­la­tions, which re­quire In­ter­net-ser­vice pro­viders to treat all traffic equally, ar­gue that they are es­sen­tial for pre­serving the In­ter­net as a level play­ing field where users are free to ac­cess whatever con­tent they want. But Re­pub­lic­ans and busi­ness groups con­sider them an il­leg­al power grab that will bur­den broad­band pro­viders, ul­ti­mately mak­ing In­ter­net ser­vice slower and more ex­pens­ive for every­one.

The three judges that will de­cide the case are Sri Srinivas­an, an Obama ap­pointee; Steph­en F. Wil­li­ams, a Re­agan ap­pointee; and Dav­id Ta­tel, a Clin­ton ap­pointee. Ta­tel will be the most closely watched be­cause he is the most fa­mil­i­ar with the FCC’s dec­ade-long saga on In­ter­net reg­u­la­tion. He heard the leg­al chal­lenges against the FCC’s pre­vi­ous two at­tempts to pro­tect net neut­ral­ity, and he ruled against the agency both times.

That re­cord is boost­ing the con­fid­ence of the in­dustry groups, but the FCC and its sup­port­ers are bet­ting the third time will be the charm be­cause when the agency wrote the rules, they did so in a mat­ter aimed spe­cific­ally at ad­dress­ing Ta­tel’s pre­vi­ous com­plaints.

The judges set aside more than two hours for ar­gu­ments di­vided up in­to a few sub­jects. Those sec­tions are likely a good hint at what the judges be­lieve are the most im­port­ant leg­al ques­tions.

Is the In­ter­net a “tele­com­mu­nic­a­tions ser­vice?”

The first hour of the or­al ar­gu­ment will fo­cus on the core leg­al dis­pute in the case: wheth­er the In­ter­net is a “tele­com­mu­nic­a­tions ser­vice” un­der Title II of the Com­mu­nic­a­tions Act. For more than 80 years, the FCC has used that sec­tion for broad reg­u­la­tions of tele­phone com­pan­ies, in­clud­ing which cus­tom­ers they have to serve and how much they can charge.

In 2002, dur­ing the Bush ad­min­is­tra­tion, the FCC de­cided to treat broad­band In­ter­net ser­vice with a much light­er reg­u­lat­ory touch. The In­ter­net, the FCC said at the time, is really an “in­form­a­tion ser­vice” mostly out­side of the agency’s au­thor­ity. In 2005, the Su­preme Court de­ferred to the FCC as the ex­pert agency and up­held that clas­si­fic­a­tion in a case called Brand X.

Without the sweep­ing powers of Title II, the FCC had largely hand­cuffed its own abil­ity to reg­u­late In­ter­net pro­viders. It tried to go after Com­cast us­ing only an “In­ter­net Policy State­ment,” but got re­jec­ted by the D.C. Cir­cuit in 2010. So the agency then en­acted form­al net-neut­ral­ity reg­u­la­tions, but the D.C. Cir­cuit again threw them out in early 2014. Ta­tel and the oth­er judges ruled that the FCC was try­ing to treat In­ter­net pro­viders like “com­mon car­ri­ers” (es­sen­tially, pub­lic util­it­ies) without clas­si­fy­ing them ac­cord­ingly un­der Title II.

Be­cause Title II was con­sidered polit­ic­ally ex­plos­ive, the FCC at first tried again to write new rules without in­vok­ing the con­tro­ver­sial sec­tion. But after mil­lions of people filed out­raged com­ments and Pres­id­ent Obama en­dorsed the stronger ap­proach, the com­mis­sion en­acted rules earli­er this year that clas­si­fied the In­ter­net as a “tele­com­mu­nic­a­tions ser­vice” un­der Title II.

So the main ar­gu­ment from the in­dustry groups is: The FCC had it right the first time. Broad­band pro­viders, they ar­gue, are more ac­cur­ately clas­si­fied along­side “in­form­a­tion ser­vices” such as Google and Net­flix than un­soph­ist­ic­ated phone com­pan­ies that just trans­mit calls.

“The heart of In­ter­net ac­cess is the cap­ab­il­ity to in­ter­act with and ma­nip­u­late data stored on re­mote com­puters by the pro­vider or a third party,” the com­pan­ies and as­so­ci­ations wrote in a joint brief to the court.

But that’s a bizarre way of view­ing the ser­vice that com­pan­ies like Com­cast ac­tu­ally provide, the FCC and its sup­port­ers ar­gue. Even con­ser­vat­ive Su­preme Court Justice Ant­on­in Scalia wrote in a dis­sent­ing opin­ion in the Brand X case that claim­ing In­ter­net pro­viders don’t of­fer tele­com­mu­nic­a­tions ser­vice is like a pizzer­ia say­ing it doesn’t de­liv­er pizza.

“No, even though we bring the pizza to your house, we are not ac­tu­ally ‘of­fer­ing’ you de­liv­ery, be­cause the de­liv­ery that we provide to our end users is ‘part and par­cel’ of our pizzer­ia-pizza-at-home ser­vice and is ‘in­teg­ral to its oth­er cap­ab­il­it­ies,’” Scalia wrote (in the voice of the ima­gin­ary pizzer­ia em­ploy­ee).

And the real les­son from the ma­jor­ity opin­ion in the Brand X case, ac­cord­ing to the FCC, is that the courts should de­fer to the ex­pert­ise of agen­cies when the law is am­bigu­ous. And as the ex­pert agency, the FCC ar­gues, it is free to change its mind. So ob­serv­ers will be closely ana­lyz­ing the ques­tions from the judges Fri­day to see how will­ing they are to de­fer to the FCC.

Did the FCC over­reach by in­clud­ing cel­lu­lar ser­vice?

The second block of time will fo­cus on the FCC’s de­cision to ap­ply the rules equally to In­ter­net ac­cess on home com­puters and mo­bile devices. CTIA (the cel­lu­lar in­dustry’s lob­by­ing as­so­ci­ation) and AT&T ar­gue that In­ter­net con­nec­tions on smart­phones are really a “private mo­bile ser­vice,” which is ex­empt from Title II.

To try to avoid that prob­lem, the FCC re­clas­si­fied cel­lu­lar data as a “com­mer­cial mo­bile ser­vice” in its net-neut­ral­ity or­der. Un­der the Com­mu­nic­a­tions Act’s defin­i­tion, a com­mer­cial mo­bile ser­vice has to con­nect to the pub­lic-switched net­work, which tra­di­tion­ally meant con­nect­ing phone num­bers. But the FCC also re­defined that term to in­clude In­ter­net ad­dresses. The FCC, its law­yers ar­gued, just “ex­er­cised its dis­cre­tion to up­date the defin­i­tion of pub­lic-switched net­work to re­flect cur­rent tech­no­logy.”

In their court brief, the com­pan­ies shot back: “That is not an up­date, but a rad­ic­al re­ima­gin­ing.”

This sep­ar­ate line of leg­al at­tack means the court could strike down just the por­tion of the reg­u­la­tions that ap­ply to cel­lu­lar car­ri­ers. And with con­sumers in­creas­ingly re­ly­ing on their smart­phones—some­times as their only way of ac­cess­ing the In­ter­net—that would be a severe blow to net-neut­ral­ity sup­port­ers.

Do the rules vi­ol­ate free speech?

Net-neut­ral­ity rules are crit­ic­al for pro­tect­ing free speech, its sup­port­ers say. They ar­gue that In­ter­net pro­viders shouldn’t be able to con­trol what people can read, watch, or say on­line. But some of the com­pan­ies su­ing the FCC claim that it is the reg­u­la­tions them­selves that ac­tu­ally vi­ol­ate free speech, and the court set aside 20 minutes to ex­am­ine the is­sue.

The First Amend­ment pro­hib­its the gov­ern­ment from or­der­ing people or com­pan­ies to trans­mit speech they dis­agree with, ac­cord­ing to Randy May, the pres­id­ent of the Free State Found­a­tion, a con­ser­vat­ive think tank that op­poses the FCC’s reg­u­la­tions. “I think as a con­sti­tu­tion­al mat­ter, [the In­ter­net pro­viders] would have the right to block ac­cess to a ho­mo­phobic site if they wanted to ex­er­cise that free­dom or the right to block ac­cess to sites that pro­moted ter­ror­ist activ­it­ies,” May said.

Har­old Feld, the seni­or vice pres­id­ent of Pub­lic Know­ledge, a con­sumer ad­vocacy group that sup­ports net neut­ral­ity, warned that it would be a “total dis­aster” if the court ruled that the reg­u­la­tions vi­ol­ate the First Amend­ment. Not only would that kill net neut­ral­ity, but it would also throw in­to doubt an ar­ray of oth­er FCC rules, such as ones aimed at en­sur­ing uni­ver­sal ac­cess to tele­phone and In­ter­net ser­vice. But, Feld pre­dicted, the judges are “go­ing to be very re­luct­ant to dig in­to the con­sti­tu­tion­al is­sues.”

No mat­ter how the D.C. Cir­cuit rules, many ob­serv­ers are ex­pect­ing that this case will ul­ti­mately be bound for the Su­preme Court.

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