Why Won’t This Page Load? Net Neutrality Hits the DC Circuit

The U.S. Court of Appeals for the D.C. Circuit heard oral arguments today determining whether the FCC was wrong to eliminate its own rules protecting an open internet. In a lively panel, Judges Millett, Wilkins, and Williams jumped in with questions less than a minute into the case, and kept all seven advocates at the podium for wide ranging questions taking more than five hours to complete – almost double the allotted time for this case.

As quick refresher, we have been here before. Most recently, the D.C. Circuit reviewed the 2015 Open Internet Order, which was the culmination of a decade of proceedings designed to enact reasonable limits on the ability of BIAS (broadband internet access service) providers to interfere with their customers’ free and open access to the internet. The 2015 Order barred throttling, blocking, pay-to-play practices, and other methods of ISPs’ interference between consumers and the online sites and services they want to reach. In 2016, and again in 2017, the D.C. Circuit upheld the 2015 order’s premise that BIAS providers have the incentive and capability to interfere with users’ internet access, and have done so.

Net neutrality rules are lawful and overwhelmingly popular, with support by 83% of Americans, who recognize that net neutrality is good for both consumers and business. This is especially important when acknowledging that roughly half of U.S. homes have — at most — only one high-speed internet option. Many Americans depend on BIAS providers for internet, video, and telephone, making the connection itself important.

Nonetheless, in 2018, the FCC did an abrupt u-turn, passing the Restoring Internet Freedom Order, wiping out the 2015 rules, and disavowing every source of authority for such rules. Despite no changing facts in the intervening years – other than the leadership of the FCC – in 2018, the FCC reversed more than 100 findings in the 2015 Order, proclaiming them wrong three years after they were adopted and upheld by the D.C. Circuit. The 2018 Order then disclaimed any responsibility for the FCC enforcing the bipartisan goal of internet openness. It did this by reclassifying the BIAS service itself as an information service, not a telecommunications service, using a newly-conjured rationale. (Side note: All prior decisions of the FCC, the D.C. Circuit, and the Supreme Court acknowledge that ISPs’ “offering” of BIAS includes both a telecommunications component and add-on information services historically provided by the BIAS providers, such as email and web hosting.)

In 2018, the FCC reasoned that even if BIAS did nothing more than provide a telecommunications path to third-party edge providers offering information services, that path in itself qualified as an “information service.” This argument essentially reads the definition of “telecommunications” (the transmission of information between points specified by the user without change in the information’s form or content) out of the Communications Act, reducing the FCC’s ability to rely on Title II to promulgate strong consumer protections.

Today’s argument made clear that the FCC failed to engage in the robust cost-benefit analysis promised by the NPRM, instead contenting itself with hypothesis and qualitative determinations. For that reason alone, the 2018 Order should be struck down as insufficient.

The FCC’s answers today reinforced why net neutrality protections are needed:

• At argument, Judge Williams asked the General Counsel of the FCC if the 2018 Order would allow an ISP to contract with Hulu to stream their content quickly, while Netflix was throttled? The answer was a resounding yes, provided the agreement was disclosed.
• A related line of questions asked whether an ISP could decide to block content it found distasteful. The answer was that content could be blocked, and the market would correct it if necessary (ignoring the fact that nearly 50% of American households do not have a choice in high speed providers and have no ability to select a different service provider).
• Santa Clara highlighted for the court that, despite comments filed during the comment phase raising concerns that emergency services could be negatively affected by paid prioritization, the FCC failed to address public safety in its fact-findings. The FCC responded that local governments could have enterprise accounts giving them paid-prioritization – ignoring the fact that many local governments are struggling for resources, and failing to realize that much of the information during an emergency comes from everyday Americans trying to upload videos of a shooter, or post photos of downed powerlines in a windstorm.

Arguments today starkly framed a world without internet protections: where wealthy and powerful actors can dominate the networks, free speech can be suppressed, and emergency services slowed. For the first time since the dawn of the commercial internet, a start-up cannot be certain of launching a new internet-based service without interference from BIAS providers. This is a troubling glimpse of the future of the internet, and the D.C. Circuit should rule in favor of protecting net neutrality.