There was swift and extensive reaction Monday to oral argument in Verizon's challenge to the FCC's Open Internet order, including a promise from cable operators that whatever happens to the FCC's regs, they will keep providing fast Internet and will not block access to lawful content, applications and services.
In an unsigned blog posting, the National Cable & Telecommunications Association said: "[N]o matter how the case comes out, cable broadband customers should have confidence that they will continue to enjoy the same fast and open Internet experience that millions of Americans cherish every day."
Court watchers were giving fairly long odds that the FCC's rules would remain entirely intact, but NCTA said that even without those rules, "broadband providers would retain a strong incentive to ensure that consumers have the high-speed connections they need to access these offerings." And if there are bad actors, the Justice Department and Federal Trade Commission have the authority to police them. "Thus, even if the FCC loses today’s case and its rules are overturned, one thing that will not change is consumers’ access to an open, growing and vibrant Internet," said NCTA.
Public Knowledge, which intervened in the case on the FCC's side, warned about what it thinks will happen if the court rules against the FCC.
"Today's oral arguments extend beyond the boundaries of net neutrality rules," said Public Knowledge President Gigi Sohn. "This case brings to question the amount of power the FCC may or may not be able to retain. The FCC is working on several issues that involve web traffic, fraudulent billing and universal access to broadband. If the Federal court decides that the FCC doesn't have the power to create open internet rules, there could be a residual impact on the FCC's ability to make decisions that involve the future of what has now become our primary communications tool."
"After witnessing this morning's oral argument, I certainly would not say it is a 'slam dunk' for either side," said Free State Foundation President Randolph May. "But with the usual caveat that predictions based on oral arguments can be hazardous, my sense is that Verizon is more likely than not to win on important aspects of its appeal."
Free Press policy director Matt Wood said no matter what the court decides, the FCC needs to classify Internet access as a Title II telecom service, which would make it subject to common carrier regs.
"Today in the courtroom, all three judges seemed to agree that the FCC has some authority over broadband Internet access services, but they questioned the framework that the agency used to get there," he said. “We've said all along that the FCC should fix the mistakes it made a decade ago and put Internet access and broadband telecommunications back under the regulatory framework that Congress intended. This case is not the end of the line for the FCC or the Open Internet rules, but it should be the end of the line for this compromised legal approach that strands Internet access services in a regulatory twilight zone.
"Regardless of this case's outcome, the American people need an open and public communications network and a strong agency that protects the public from abusive corporate practices. If the FCC abdicates that broader role, there will be serious negative consequences for consumers, competition and innovation."
The FCC under Julius Genachowski raised the possibility of classifying--or reclassifying as some, including Free Press argue--Internet access under Title II. That would be a nuclear option for cable ops and Genachowski's compromise of regulating it under the FCC's congressional mandate to assure access to advanced communications services helped get those cable ops to the table--only Verizon challenged the compromise Open Internet order in court
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.