Stakeholder Verdict in on Net Neutrality Oral Argument

Stakeholders were quick to weigh in with their take on Friday's oral argument on the legal challenge by edge providers, activists, local governments and others, to the FCC's deregulatory Restoring Internet Freedom order.

While it was hard to tell from the judge's questioning who would prevail, both sides continued to sound confident their side would prevail, at least eventually.

FCC commissioner Jessica Rosenworcel, who voted against the deregulatory order tweeted that she was "hopeful."


Mike Copps, Rosenworcel's former boss as commissioner and FCC chairman and current special advisor to Common Cause, was a big backer of strong network neutrality rules while at the commission, and has been a big critic of the deregulatory order after he left it.

New Democratic FCC commissioner Geoffrey Starks laid down a marker on the issue in response to the arguments.“Today in federal court, this FCC is attempting to explain why it ignored the evidence before it and hastily abandoned the carefully crafted, common sense Open Internet framework established in 2015. In the process, it ignored the will of millions of people who made their support for a free and open Internet crystal clear. Like many others, I am paying close attention," he said. “We know that consumers cannot count on the goodwill of big business to protect their interests. Unfettered access to the Open Internet provides a gateway to opportunity. Strong, enforceable rules empower consumers to make sure they get the service that they pay for and expect. I strongly believe that the FCC made the right call with the framework it established in 2015, and I am hopeful that these critical consumer protections will soon be restored.”

"Our side’s pro-net neutrality arguments before court today were light years more compelling than the time- worn and discredited arguments of those who oppose a truly open internet," he said. "And the Courts have agreed with us, twice upholding the FCC’s 2015 net neutrality rules. There’s no defense for an FCC that completely abdicated its authority over broadband, leaving consumers unprotected and subordinating our democracy to the whims of monopoly telecom and cable companies who have the ability and incentive to control what we do, what we see, and where we go online."

Free State Foundation president Randolph May was just as confident it would go the other way, either in this court, or a higher one if that were not the case.

“The discussion relating to parsing the techno-functional constructs in the statutory definitions of information services and telecommunications services showed once again that, at least to some extent, the distinctions between the two definitions can devolve into the metaphysical," he said. "That being so, I see no reason why the court will not again defer to the FCC’s classification decision under Chevron, because the judges, not having been confirmed as metaphysicians, are likely to follow the Brand X legal precedent. And if the D.C. Circuit doesn’t adhere to the Brand X precedent granting the agency deference in interpreting the definitions, I think the Supreme Court will."

“The appeals court judges today heard in full detail just how awful a job the Trump FCC did," said Free Press policy director Matt Wood, whose group has been critical both of the FCC's deregulatory order and how it was arrived at. "The Commission’s decision to dismantle the Net Neutrality rules was wrong on the law and wrong on the facts. We remain as confident as ever that this court will return Net Neutrality protections to everyone in the United States, ensuring that the internet remains a space where people can fight for racial and social justice, pursue economic opportunities and engage in political speech without risk of ISP interference."

"[T]he FCC’s move to reclassify broadband was both hasty and sloppy," said Chris Lewis, VP at Public Knowledge, one of the petitioners in the case. "The agency adopts unreasonable readings of the law and violates the Administrative Procedures Act. For these reasons, we are confident that the court will vacate the FCC's decision.”

“The [Restoring Internet Freedom Order restored the smarter, more nimble, pro-consumer framework that has guided internet policy for more than 20 years," said Jonathan Spalter, president of USTelecom. "Based on today’s arguments, we remain confident the D.C. Circuit will uphold it. The Order is consistent with Supreme Court precedent. Only two years ago the court said it would leave the decision of internet service classification to the expert agency – a precedent we believe it should follow.”

“We thought it was a thorough discussion and as a result, the quality of the arguments on our side were shown to be the most persuasive," said CCIA president Ed Black, whose side is Mozilla et al. challenging the FCC. "The arbitrary and capricious action by the FCC under Chairman Pai, which has threatened the open Internet, now appears to be in legal jeopardy. The judges demonstrated insight into the law and policy underlying it, and we feel confident they will rule in the interest of the public and competition."

“Today, Petitioners persuasively argued that the FCC’s complete abdication of its authority to protect consumers from ISP abuses lacked reasoning and harmed consumers," said Sarah Morris, deputy director of New America’s Open Technology Institute. "The FCC has no leg to stand on in defending its decision. The court should vacate the Restoring Internet Freedom Order.”

"WISPA [wireless internet service providers] is optimistic that the FCC’s “Restoring Internet Freedom” order will be upheld," said the group. "We look forward to working with Congress to craft lasting net neutrality protections that take into account our small business concerns. As we heard during oral argument today, small WISPs will continue to benefit from rules that remove regulatory burdens and encourage investment and deployment to rural and under-served communities. "Let’s be clear: our members do not block, throttle, or accept payments to prioritize internet traffic. WISPA agrees that ISPs should clearly disclose their terms of service, disclose their network management practices, and protect their customers’ private information; and our members do."

John Eggerton

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.