Petitioners who sued the FCC over its Restoring Internet Freedom Order argued in front of a panel of three judges in the United States Court of Appeals District of Columbia Circuit with arguments against the agency’s decision ranging from procedural matters to the public safety impacts.
In 2017, the FCC repealed the Open Internet Order, the 2015 net neutrality rules passed by a previous administration—which used the Restoring Internet Freedom Order—after much public outcry.
Proponents of net neutrality—including digital rights groups, states attorneys general, and other organizations who sued the FCC as part of Mozilla Corporation v. FCC—made oral arguments for just over two hours in front of judges Patricia Millet, Stephen Williams, and Robert Wilkins.
The judges asked detailed questions to both the petitioners and the FCC about the finer details of their arguments.
The petitioners argued against the FCC’s ability to reclassify internet access from a “telecommunications service” to the less restrictive “information service.” It was one of the core arguments laid out on Friday.
“This order is a stab in the heart of the Communications Act,” said the petitioner’s attorney, Pantelis Michalopoulos, near the beginning of the argument.
The proponents also argued about procedural rules leading up to the decision to pass the Restoring Internet Freedom Order. A major portion of their oral argument focused on whether or not the FCC violated the Administrative Procedure Act and whether the FCC was able to abdicate oversight of the internet to the Federal Trade Commission (FTC).
“Mozilla took on this challenge because we believe the FCC needs to follow the rules like everyone else. We argued before the Court that the FCC simply cannot renounce its responsibility to protect consumers on a whim. It’s not permitted by law, and it’s not permitted by sound reasoning,” Mozilla COO Denelle Dixon said in a statement. “The fight to save net neutrality is on the right side of history. Consumers deserve an open internet. And we look forward to the decision from the Court.”
Another group among the petitioners, Free Press, said the repeal of net neutrality in 2017 was “unreasonable and arbitrary.”
“The FCC under Chairman Ajit Pai was unreasonable and arbitrary time and again as it plowed ahead recklessly, committing serious errors by ignoring the laws Congress wrote for the agency to enforce,” said Matt Wood, the policy director of Free Press, in a statement. “It also ignored the overwhelming public outcry in favor of preserving these safeguards and refused to investigate the mass of faked comments that undermined the proceeding.”
After the petitioners argued in front of the judges, the FCC followed for just under two hours.
The FCC argued that it has the authority to use enact the Restoring Internet Freedom Order, adding that it was “precisely what it did.”
The FCC also said a decrease in broadband investment—a major reason brought up for the agency’s repeal decision—was caused by the previous net neutrality rules. However, Judge Millet questioned their attorney extensively over that claim.
Judge asks FCC's lawyer what evidence shows that net neutrality rules depressed investment in infrastructure. All he can point to is studies funded by the ISPs themselves.
— EFF Live Tweets (@EFFLive) February 1, 2019
The FCC left the arguments on Friday feeling confident.
“The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service, and after today’s argument we continue to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today,” said Matthew Berry, the FCC chief of staff, in a statement to the Daily Dot.
Meanwhile, following the conclusion of the arguments, FCC Commissioner Jessica Rosenworcel, a Democrat, tweeted she was “hopeful.”
“#NetNeutrality was in court today. No shortage of complex issues in oral argument. But here’s what’s clear: the court now has a chance to right what the @FCC got wrong when it made the misguided decision to roll back #NetNeutrality. I sat through it all. I’m hopeful,” she wrote.
#NetNeutrality was in court today. No shortage of complex issues in oral argument. But here’s what’s clear: the court now has a chance to right what the @FCC got wrong when it made the misguided decision to roll back #NetNeutrality. I sat through it all. I’m hopeful.
— Jessica Rosenworcel (@JRosenworcel) February 1, 2019
A decision from Millet, Williams, and Wilkins could take months, and it is likely the losing side will appeal.