The fate of the internet will once again rest in the hands of three federal judges when they hear oral arguments Friday in a pivotal challenge to the Federal Communications Commission.
From a sixth-floor courtroom in Washington, FCC lawyers will argue that the agency acted correctly last year when it officially took its net neutrality rules off the books — legally clearing the way for internet service providers to speed up, slow down or block apps and websites if they so choose.
State and local officials, tech companies and consumer groups are urging the court to countermand the FCC, saying the agency’s decision is based on a faulty analysis and flawed reasoning. Without the protection of the net neutrality rules, supporters say, internet providers will be unconstrained in their ability to steer customers toward proprietary or partner services, reshaping the internet to their own commercial benefit and to the detriment of ordinary users.
“This wasn’t how the internet was meant to be,” said Denelle Dixon, chief operating officer of Mozilla, which makes the Firefox web browser and is leading the court fight against the FCC. “An internet that enables consumer choice necessarily protects net neutrality. Without protecting net neutrality, [broadband providers] will control the internet experiences of everyone. And that cannot be what happens.”
The involvement of Mozilla — along with Etsy, Vimeo and tech-backed digital rights groups — underscores the tense relationship between well-heeled Silicon Valley companies and the powerful internet service providers they rely on to reach consumers. Caught in between are regulators who have written and rewritten the rules for net neutrality with every change in administration dating back to President George W. Bush.
With Friday’s oral arguments, the FCC will become the latest Trump-era federal agency to find itself in court after a slew of deregulatory decisions on diverse topics including environmental policy and immigration.
The legal showdown marks the second time in four years the FCC has faced judicial review over its internet policies; in 2015, the positions were reversed, when Obama-era telecom regulators successfully defended the net neutrality rules from a lawsuit by internet service providers.
Having failed to defeat the rules in court, opponents of the regulations sought to change them from within. FCC officials argue that Chairman Ajit Pai, a Republican, acted within the agency’s authority when he held a vote in 2017 to reverse how the FCC oversees internet service providers. Agency officials say they are returning to a time when internet service providers were more lightly policed — citing a landmark 2005 Supreme Court ruling that gave the FCC broad discretion to decide how to regulate broadband.
“The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service, and we have every reason to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework,” said Matthew Berry, the FCC’s chief of staff.
Berry said that since the net neutrality rules came off the books last summer, the internet had continued to thrive without the disastrous consequences that activists predicted.
Opponents of the FCC rejected that assertion this week, citing research from Northeastern University that suggests some wireless carriers may have slowed down service to Netflix and other video providers. They also warn that internet service providers are largely “on good behavior” during the court battle but could easily change their tack.
FCC officials say that argument is implausible, pointing out that a future FCC could impose tougher net neutrality rules, or Congress could write legislation cracking down on internet service providers if they went too far.
But the central debate Friday, experts say, is likely to focus on whether the FCC erred in its decision-making process, not on the likely effects of its revised policy.
Critics of the FCC will argue that it rushed to judgment, cherry-picking economic evidence to justify the repeal and forsaking its congressionally mandated mission to serve competition and the public interest. The FCC will argue that it presented a reasoned analysis based on the evidence it had at its disposal and that it has the benefit of legal precedent on its side.
Which team is on the right side of the law will be up to three judges to decide.