Oral arguments will begin today for one of the most important cases in internet law history. The case will be heard in a Washington, DC courtroom, as a group of net neutrality defenders squares off with the Federal Communications Commission in a legal battle to decide the rules of the web.
When the FCC, led by a Republican majority, moved in late 2017 to repeal Obama-era net neutrality rules, it kicked off a fight on several fronts. There's been some pressure on congressional lawmakers to overrule the decision, and states have moved to implement their own versions of the rules.
But what may be the most likely shot at restoring net neutrality regulations will come from a petition against the FCC filed by several supporters of the dismantled rules. The case, Mozilla Corporation v. FCC, will be heard by the US Court of Appeals for the District of Columbia, and the court will decide whether the FCC, led by Chairman Ajit Pai, was within its rights to end the protections.
Information service versus telecommunications service
The case will hinge on deeply technical arguments. When the 2015 rules were passed, the FCC moved to regulate the internet as a telecommunications service, as opposed to the less stringent classification of an information service, a change that was then reversed in 2017. The agency has positioned that move as well within its purview, and as a return to the pre-2015 rules of the road. But in convincing the three-judge panel overseeing the case, the agency will also have to argue why it should be allowed to undo rules the same court previously upheld.
Gigi Sohn, an adviser to the petitioners in the case and former FCC senior adviser to Democratic Chairman Tom Wheeler, says in response that the FCC violated the letter of the law when it reclassified the service. By failing to adequately assess broadband service providers' role as telecommunications providers under the FCC charter, the FCC overstepped.
"The main argument against, or number one, is the FCC violated the Communications Act when it ruled that broadband internet access service is an information service that has no telecommunications component at all," Sohn says. In a legal brief, the petitioners have argued that the FCC's decision would be like categorizing the road to a hotel as the hotel itself. (Citing precedent, the agency has dismissed the use of "warring analogies.")