Reading the tea leaves from a court hearing is a dangerous endeavor. But standing out from a hearing on Friday over net neutrality regulations were comments from an influential judge who seemed to indicate more comfort with the Federal Communications Commission‘s legal defense of the rules.
The comments came from Judge David S. Tatel of the United States Court of Appeals of the District of Columbia Circuit during a hearing where the F.C.C. was defending its net neutrality rules against opponents who want to overturn the broadband regulations that are aimed at preventing favoritism on the Internet. Judge Tatel is part of a three-judge panel that will decide whether the rules are upheld or struck down.
The F.C.C. is defending the rules against a lawsuit filed by telecom, cable and wireless trade groups. The F.C.C.’s classification of broadband as a “common carrier” service like phones is at the heart of the suit. Telecom and cable firms argue that broadband services are not the same as telephone services and should not be strapped with the same utility-style framework of heavy regulations. They say the F.C.C. illegally put broadband into the same bucket as phone services so the net neutrality rules should be overturned. The agency has argued that it had to reclassify broadband as a utility-like service after the court vacated rules last time and told the agency it was making rules on shaky legal ground.
On Friday, Judge Tatel pointed several times to case history that supports the F.C.C.’s move to regulate broadband services like utilities. He said an opinion by the Supreme Court in 2005 gave the F.C.C. the ability to categorize communications services as it sees fit. Judge Tatel also repeatedly went back to that high court decision in questions to cable and telecom companies suing the agency for overreach.
“Isn’t that our starting point?” Judge Tatel said just minutes into a long morning of oral arguments. His comments were particularly scrutinized because twice before, in 2010 and 2014, he wrote opinions to vacate previous net neutrality rules.
The results of the case could reshape the way consumers access Internet content. For more than a decade, the F.C.C. has tried to create regulations to ban Internet service providers from blocking certain websites or making some travel faster or slower than others. A decision is expected in the spring. If the F.C.C. wins, telecom and cable firms may take the case to the Supreme Court.
In three hours of arguments on Friday, the judges also showed skepticism of several aspects of the F.C.C. rules, including whether the agency had the authority to strap net neutrality rules onto wireless services and whether it was reasonable to ban “paid prioritization,” where websites pay Internet service providers for faster downloads.
Judge Stephen F. Williams compared priority delivery of content on the Internet to the “entirely reasonable” practice of food companies paying trains for refrigerated cars.
Still, Gene Kimmelman, head of the public interest group Public Knowledge, which supports the rules, said the hearing was notable because while he has “heard many arguments of the commission before the court where they’ve been ripped apart,” this time “they were given sound support for using reclassification, which was the critical point.”