Court Grills Lawyers On Net Neutrality

A panel of federal judges on Friday grilled the top lawyer for the Federal Communications Commission (FCC) over the implications of the agency's decision to repeal its net neutrality rules in 2017.

The D.C. Circuit Court of Appeals heard oral arguments from both sides in a case challenging the FCC’s order to eliminate the rules requiring internet service providers to treat all web traffic equally.

According to The Hill, The judges had pointed questions for both net neutrality supporters and the FCC, and it’s unclear how the three-judge panel might rule. At least two of the judges, though, seemed concerned about the repeal’s effect on public safety and how the industry might behave in the absence of FCC oversight.

Pantelis Michalopoulos

The legal battle centers in part on questions of whether the FCC overstepped its authority in reclassifying internet service providers and in preempting states from substituting their own net neutrality rules, and whether it followed administrative procedure law in carrying out the order.

“This order is a stab in the heart of the Communications Act,” Pantelis Michalopoulos, a lawyer for the public interest groups and tech companies challenging the FCC’s decision, told the court.

The agency argued that its authority to reverse course from the Obama administration’s regulatory regime is well grounded in Supreme Court precedent.

Reuters reports the arguments focused on how internet providers should be classified under law - either as information service providers as the Trump administration decided or as a public utility, which subjects companies to more rigorous regulations - and whether the FCC adhered to procedural rules in dismantling the Obama-era rules.

FCC's Tom Johnson

“We are creating rules that are built to last,” FCC general counsel Tom Johnson told the U.S. Court of Appeals for the District of Columbia.

Judge Patricia Millett repeatedly pressed Johnson over the FCC’s legal basis for treating telephone calls differently than internet traffic and asked if the FCC had properly considered the public safety impacts.

Millett raised the example of police needing to send urgent photos or video of a suspect that could be delayed if some internet traffic was prioritized.

“We can’t anticipate all harms,” Johnson said. As he sought to play down the concern Millett interjected: “There’s no evidence because they haven’t done it yet.”

In its 2017 decision the Republican-led FCC voted 3-2 along party lines to reverse the net neutrality rules. The agency gave providers sweeping power to recast how users access the internet but said they must disclose any changes in users’ internet access.

A group of 22 state attorneys general and the District of Columbia asked the appeals court to reinstate the Obama-era internet rules and to block the FCC’s effort to pre-empt states from imposing their own rules guaranteeing an open internet.

Several internet companies are also part of the legal challenge, including Mozilla Corp, Vimeo Inc and Etsy Inc, as well as numerous media and technology advocacy groups and major cities, including New York and San Francisco.

A decision is expected by this summer.