This morning, a trio of judges — Circuit Judges Sri Srinivasan and David Tatel and Senior Circuit Judge Stephen F. Williams — at the U.S. Court of Appeals for the D.C. Circuit spent three hours listening to, questioning, and challenging the best arguments that net neutrality’s opponents could make for reversing the rule, and that the FCC could make for keeping it.
As compared to the millions of pages of comments, opinions, and facts that went into the forming of the open internet rule, today’s oral arguments had a narrow focus. That’s because when it comes to filing an actual appeal, you can’t just say, “this rule sucks and I hate it” the way you might on Twitter. Instead, you have to provide and argue for a specific set of reasons why the rule or law you’re appealing is unlawful, unjust, or harmful.
Even if you’re taking the spaghetti approach — as in, throwing all of your possible arguments at the wall and seeing what sticks — you still have to make a specific, narrow, targeted case demonstrating not only that you are right, but also, very specifically, why. What legal justification bolsters your side? What set of statutes or pre-existing case law are you drawing your conclusions from? The legal arguments are not just about winning, but about how you can win.
And so arguments stack up one upon the next, like a big Jenga tower of logic, some able to stand even if pieces are missing from the levels below it… and others, not so much.
Issue 1: Reclassification, Common Carriers, and Peering
To create its net neutrality rule, the FCC reclassified broadband internet service, both fixed and mobile, as Title II telecommunications services under the law. That classification obliges them to behave as common carriers, meaning they are conduits that have to move traffic around, and that the FCC has authority to prevent them from blocking or prioritizing certain traffic.
Petitioners, including most of the big wired and wireless broadband providers as well as the trade groups representing them, argued that the services they provide are not telecommunications services, and therefore the FCC can’t just reclassify them. The FCC, obviously, feels otherwise.
For the petitioners, the logic tree needed to prove that (1) what they do doesn’t qualify as a telecommunications service, (2) what they do does qualify as an information service, (3) the FCC was wrong to make the distinction they did.
For the FCC, the logic needed to argue that (1) yes it does, (2) no it doesn’t, and (3) no we weren’t.
The argument went into the weeds what is or isn’t required for something to qualify as an information service, as well as what goes into interconnection (peering).
“[ISPs] don’t engage in common carriage agreements,” attorney Peter Keisler argued for the petitioners, nor have they ever made any such promise to do so. Instead, every interconnection agreement is an individually, separately negotiated contract, and neither businesses nor consumers should expect otherwise. Keisler also spoke to the ways in which ISPs have to use computing functions to route and manage traffic as proof for their status as information services.
FCC general counsel Jonathan Sallet countered that there is no such thing as a last mile that is “only” made of wire, and argued that the way in which tools are used does not necessarily change what those tools are.
Sallet drew an analogy to hardware. “A screw is always regulated the same way,” he said, whether it becomes part of a chair or part of an ambulance. Furniture and medical services are regulated entirely differently but the screw that will hold either one together has to meet the same standards.
Issues 2 and 3: The Process, and What Is a Cell Phone?
The petitioners’ next set of arguments was procedural: even if the FCC has the authority to make this decision and didn’t make the wrong one, they argued, the commission did it wrong and unfairly and so the rule is invalid.
Judges questioned the FCC many times about what had changed in the agency’s thinking during the rulemaking process and also during the decade before it, and why the FCC had gone for a Title II approach in the end instead of several other legally permissible options they could have considered (and for a while, did).
Sallet replied that during the rulemaking process, the FCC simply changed its strategy because it learned more. “We looked at circumstances and determined that a case-by-case approach would lead to an undue burden on small edge providers,” he explained, who would be significantly disadvantaged by the time and resources they would have to allocate to making their case before the FCC.
Combined with the procedural argument was a case against including mobile broadband in the net neutrality rule. US Telecom et al argued the various technological and hair-splitting reasons that they believed mobile broadband should not be subject to the rule, but one of their arguments against including mobile broadband was also procedural. In short, the petitioners argued notice violation: The FCC made the change without sufficient warning, and so therefore should not be allowed to make the change without starting all over again, with a new process, with sufficient warning.
Specifically, the petitioners claimed that only one line of the original NPRM mentioned mobile data at all, and so they had no idea they would be called upon specifically to defend the existing law. And so they didn’t, to their detriment.
FCC associate general counsel Jacob Lewis, however, contested that point of view. “In their voluminous comments,” he said, the CTIA made exactly these arguments and references “time and time again” about exactly the issues they were raising in the court. “The notice was brief but it was complete,” argued Lewis, and saying that they were blindsided is “inconsistent with any reading” of the actual items.
Issue 4: The First Amendment
Two petitioners apart from the rest of the pack lodged one very specific argument about the constitutionality of the open internet rule. Specifically, they argued that requiring all ISPs to adhere to common carrier regulations is a violation of the ISPs first amendment rights.
Attorney Brett Shumate, speaking on behalf of Alamo Broadband and Daniel Berninger, argued that ISPs are protected both as speech and as media. The evidence that ISPs have a right to express themselves through their network management comes from the FCC’s own rulemaking, Shumate argued: the rule against prioritization presumes that ISPs will prioritize some content over other content, and that itself is expression.
Judge Williams drew Shumate’s attention to the liability protections that ISPs get for transmitting potentially unlawful information and asked if considering ISPs to be speakers and editors wouldn’t have a side effect of costing ISPs those protections.
During his turn to argue for the FCC, Lewis pointed out that any carrier that explicitly exists on the basis of filtering the internet before bringing it to consumers is already exempt from the common carrier regulation. A company explicitly and intentionally providing a selected, curated, filtered service — like one that only accessed a handful of family-friendly or religiously-affiliated sites, say — would not qualify as a mass communications broadband ISP… because it would be selling a different service entirely, and its consumers would know that.
But in general, Lewis said, “Broadband internet providers are engaged in transportation, not expression.”
…So Now What?
Now we all wait. The judges won’t render an opinion until sometime in the new year, probably in the spring.
As for how it will go, that seems like anyone’s guess. Judges were equally interested in pressing both sides for seeming inconsistencies, illogical connections, or selective definitions. Each of the three judges seemed to have his heaviest focus on a different aspect of the proceeding. Judge Williams, for example, seemed most concerned about the FCC’s potential notice violations, where Tatel was more focused on why the FCC’s thinking changed over time, and Srinivasan most interested in the meanings of network definitions. None seemed hugely convinced by the first amendment arguments.
But although the outcome is up in the air, the case remains important.
“This is a critical case that may decide the fate of the Internet as we know it,” said Delara Derakhshani, policy counsel for our colleagues down the hall at Consumers Union (the advocacy arm of our parent company, Consumer Reports).
“The FCC passed these Open Internet rules, with proper authority, to keep the Internet open for all, rather than allowing a select few companies to choose winners and losers. These rules are essential to ensuring consumers can access the websites and apps they – not their Internet service provider – choose. As oral arguments begin today, we hope that the Court keeps a focus on the consumer need, and overwhelming desire, for an open, innovative Internet.”