The best remaining chance for restoring net neutrality has a key day in court Friday, when the U.S. Court of Appeals for the District of Columbia is scheduled to hear oral arguments in a lawsuit to overturn the Federal Communications Commission’s 2017 repeal of the open-internet rules. As of right now, there’s nothing stopping internet service providers, like Comcast and Verizon, from slowing down access to blocking certain websites, or charging websites to reach users at faster speeds, as long as the companies say that they reserve the right to do so in their terms of service.
The Obama-era net neutrality protections were barely two years old when Trump-appointed FCC Chairman Ajit Pai began taking a “weed whacker” to the rules. The agency’s repeal officially went into effect last June, and two months later, Verizon was caught throttling the internet service of the Santa Clara Fire Department while it was responding to a massive wildfire in Northern California, forcing the emergency responders to pay twice as much to lift their data restrictions. (Verizon claims that it was a customer service error.)
Now, a large coalition of consumer advocates, 22 state attorneys general, and technology companies have lodged challenges to the FCC’s repeal, all of which have been consolidated into a single case with hundreds of pages of legal briefs for the judges and their clerks to read. The FCC and internet providers contend that the repeal was legally sound and good for consumers, and a panel of three judges will hear about 75 minutes of arguments from each side about whether the gutting of the net neutrality order was done to the letter of the law.
Among the many arguments expected Friday, the challengers hold that the internet is an essential communications service, and as such should be regulated to prevent companies from discriminating against how information travels over their wires. Pai argued in his proposal to overturn the 2015 net neutrality rules that that was a misclassification, which he reclassified as an information service, like videoconferencing or email, and thus not subject to strong consumer protections. This was a rather novel argument. “The FCC is saying for the first time that broadband internet access has no telecommunications component,” says Gigi Sohn, who was senior adviser to former FCC Chairman Tom Wheeler, who oversaw the passage of the Obama-era protections. “Basically, what they’re saying is the package delivery is the package, the road to the hotel is the hotel, the pizza delivery service is the pizza,” Sohn said, noting the limits of Pai’s conception of the web. People don’t sign up for Verizon because of the email address; they do it to connect to countless websites and services.
Another point that’s likely to be argued is whether the previous net neutrality rules dissuaded internet providers from investing in their broadband networks, a claim Pai has made repeatedly. The problem with that argument is that after the net neutrality rules were passed in 2015, Comcast, Verizon, and AT&T all told their investors in public calls that they’d subsequently buttressed their investment in improving and building out their networks. And in 2018, the year after the FCC voted to repeal net neutrality, Comcast reported that its overall capital expenditure costs decreased, as did Verizon and Charter. Pai has repeatedly cited decreases in capital expenditure as a key indicator of net neutrality impeding investment in network expansion. That argument is a lot harder to believe given reports from broadband providers that say otherwise.
Challengers to the FCC’s repeal could also bring up the fact the troubled process through which the net neutrality rules were rescinded. Although more than 23 million comments were submitted regarding the net neutrality repeal—the overwhelming majority of which in favor of keeping the open-internet regulations—many of those comments were faked, submitted using stolen identities and the names of dead people, or were filed by bots, not people. Hundreds of thousands of comments were filed using Russian email addresses. Pai even claimed that the comment system sustained a mysterious cyberattack in early May 2017 when it crashed following a deluge of unexpected traffic. But the FCC’s inspector general looked into the matter and concluded this never happened. “Our investigation did not substantiate the allegations of multiple DDoS attacks,” the report said. Rather, it appears the system crashed after a segment on net neutrality on Last Week Tonight with John Oliver urged viewers to tell the FCC they opposed repealing the internet rules.
After both sides make their arguments, a ruling could take months—at which point the case could go to the Supreme Court. In the meantime, Congress will almost certainly continue to deliberate the topic. The new Democratic chair of the House Communications Subcommittee, Rep. Mike Doyle of Pennsylvania, vowed to make net neutrality the first hearing of his chairmanship. An effort to undo the FCC’s repeal failed to get enough votes to move forward in December under the last Congress.
So far, internet providers appear to be treading lightly—they’re almost certainly going to be more cautious as the issue works its way through the courts. The scary part for consumers is that if ISPs do begin manipulating how we experience the web, it could happen piecemeal, with one free service here and one slower website there, until one day we’re all living on a very different web. Comcast, Verizon, and their peers can be patient; they’ve certainly waited long enough.