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If the FCC Loses in Court Today, It Could Be the End of Net Neutrality

The FCC is defending its open internet policy from industry giants.
Image: Shutterstock

It's crunch time for net neutrality.

The US government's landmark net neutrality policy faces a crucial test Friday when advocates and opponents of the new rules face off in federal court. The Federal Communications Commission, along with a coalition of public interest groups, is battling some of the biggest cable and telecom interests in the country over whether the agency has the authority to enforce a policy it says is necessary to protect internet openness.


The legal showdown, which will take place before a three-judge panel of the US Court of Appeals for the DC Circuit, is the latest skirmish in a decade-long struggle between federal regulators and the broadband industry over net neutrality protections designed to ensure that the nation's cable and telecom giants don't favor certain online services at the expense of rivals or startups.

The fight over net neutrality has become a flashpoint in a broader ideological war over the role of government in regulating corporate America, in this case the communications industry, which accounts for one-sixth of all US economic activity. Most Democrats in Congress support the FCC policy, while most Republicans oppose it.

Twice before, the DC Circuit has thrown out earlier FCC attempts to codify rules protecting internet openness. If the agency loses again, it could be the death knell of the government's effort to enshrine net neutrality protections in federal regulations.

Following Friday's court hearing, the three-judge DC Circuit panel will likely deliberate for several weeks

Supporters of the FCC's policy are optimistic that the court will rule in their favor, in part because DC Circuit gave the FCC a roadmap to stronger legal footing in a previous decision. In ruling that the FCC lacked the authority to enforce its earlier net neutrality rules, the court said the agency would be on firmer legal ground if it relied on Title II of the Communications Act to reclassify broadband as "telecommunications service." That is precisely what the agency did earlier this year.


"We're confident the FCC's ruling will stand up in court because the agency chose the correct legal path to protect the rights Congress gave to Internet users," Matt Wood, policy director at DC-based public interest group Free Press, said in a statement. "That path—using the agency's Title II authority—was clearly delineated by the same US Court of Appeals when it considered earlier rules that were rooted in weak legal theories."

The FCC rules apply "common carrier" regulations originally designed for traditional phone companies to internet service providers in order to prohibit blocking, throttling, and paid prioritization deals, which are commercial arrangements in which broadband service providers strike special deals with deep-pocketed companies for preferential treatment.

Open internet advocates, including President Obama, say that without net neutrality, the emergence of the next Netflix or Skype might be imperiled, because broadband providers could degrade or even block such internet traffic on their networks. Net neutrality opponents claim the new rules will stifle private broadband investment—although net neutrality advocates say there is no evidence that has happened so far—and amount to an federal government "takeover" of the internet.

"Congress never envisioned entrusting the FCC with the extraordinary authority that the order purports to exercise or subjecting the Internet to intrusive central-planner-style oversight," USTelecom, an industry trade group, wrote in a legal brief challenging the FCC's policy.

Obama's full-throated support of Title II reclassification gave the FCC a strong political boost for its new policy, but also elevated what was once an obscure policy debate into a full-fledged political war.

Republican lawmakers have attached an anti-net neutrality rider onto a must-pass government spending bill that would prohibit the FCC from enforcing the rules, and Senator Ted Cruz, the Texas Republican and presidential candidate, has gone so far as to brand net neutrality "Obamacare" for the internet.

Following Friday's court hearing, the three-judge DC Circuit panel will likely deliberate for several weeks before issuing a ruling sometime early next year. After two previous defeats, the FCC is hoping the court doesn't issue a third strike against its open internet authority. If that happens, net neutrality might be out—for good.