Net neutrality back in court in the US

The Trump administration’s repeal of net neutrality was in court Friday, with companies and states arguing their case that the FCC made a huge mistake trying to kill the regulations.

A quick recap: In 2015, the Obama administration won a long-fought legal battle to classify the internet as a telecommunications service that requires strict regulation and protections to ensure all users have access to the same level of performance regardless of their provider. Shortly after taking office, the Trump administration took action to revoke and undo these rules, classifying the internet instead as an information service, that did not need any protecting.

The Trump administration has argued, as opponents long have, that those who support net neutrality are looking at a solution in need of a problem, that internet service providers are good people who will put more money into development and improving service to customers without these overbearing regulations.

Before getting into some the arguments made in the court case, let’s shine a light on something that ISPs swear doesn’t happen, pledged didn’t happen before net neutrality was enacted and will NEVER happen without it: the act of throttling, or manipulating internet speeds in order to give preferential treatment and faster access to some sites over others.

Remember that massive wildfire in California last year. Devastating – burned thousands upon thousands of acres, destroyed so many homes, killed so many pets and wild animals. Turns out, during that fire, the Santa Clara Fire Department’s website was throttled by Verizon, inhibiting the department’s “unlimited” data plan and causing them to pay double their usual fee for service. Verizon claimed, after the fact, that it was a customer service error. But, of course, according to ISPs, this never ever happens and isn’t something people should be concerned about. Ahem.

The Obama-era rules also prohibited cable, wireless and broadband providers from unfair practices, like charging Netflix and other video providers higher fees to allow their customers to stream at a better rate.

Ok, so we have 22 states and a handful of companies, including Google, Mozilla, Vimeo and Facebook, arguing that the current FCC’s position on net neutrality is wrong, bad for customers, bad for the internet, and that the FCC was wrong to reclassify the internet as an information service. We have, on the other side, the FCC and its team of lawyers trying to defend its actions, saying in part that telephone services offer the same variety of products as information services do, which backs up the reclassification of the internet. One of the FCC’s lawyers also said that customers like the ability to pick slower, cheaper internet service options.

A three-judge panel listened to their arguments for more than two hours on Friday and will determine whether the new laws need to be reconsidered or to throw out the pleas for reinstating the Obama-era regulations.

“The FCC’s so-called Restoring Internet Freedom Order, which repealed net neutrality rules, relies on a flawed understanding of how the internet works,” writes the Electronic Frontier Foundation, a strong net neutrality supporter. “The FCC based its order on the believe that certain functions inherent to operating an ISP qualify ISPs as information services under the Communications Act, not telecommunications services. The courts have already ruled that net neutrality rules can only be applied to telecommunications services.”

The EFF continues: “The FCC’s intentional misinterpretation of the law (which is necessary for its repeal efforts) led one judge on (Friday’s) three-judge panel to ask the agency whether they were describing a ‘telecom service via a telecom service,” which gets at the gamesmanship of incorrectly interpreting the law to fulfill an industry agenda.”

It wasn’t immediately clear when the three-judge panel will return its decision. But keep in mind that the Obama administration and its FCC had to go to court several times before it was allowed to enshrine and enforce the open net protections. While the Trump-era regulations went into effect last June, this case is likely far from over.

Amber Healy

I write about music policy and lawsuits because they're endlessly fascinating.

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