Net neutrality goes to court

The US Court of Appeals for the District of Columbia Circuit heard oral arguments on the FCC's open internet rules on Sept. 9. And if court watchers are reading the tea leaves accurately, always a difficult proposition, it appears the Court may be headed to a compromise decision.

Just to remind you, the FCC's current rules, adopted in 2010, bar ISPs like Verizon from blocking access to any websites and require full transparency in network management. The rules also prohibit "unreasonable discrimination," which means that an ISP like Verizon can't charge Web sites such as Google or Netflix more for priority access to users.

Verizon contends in Verizon v. FCC that the FCC lacks authority to make net neutrality rules. The Obama administration – and many community and labor groups - support the FCC’s position. Speed Matters has a long-standing position in favor of the FCC’s authority to require that providers keep the web open to all.

In oral arguments, the three-judge panel in the appeals court appeared to accept the FCC's authority to adopt open internet rules. That would be a big win for the FCC and Internet consumers.

Disagreements emerged over the specific rules the FCC. At least two of the judges seems to support the FCC's authority to prohibit website blocking. But there was strong questioning about the agency's non-discrimination rules. leaning favorably toward Verizon. According to industry analyst Jeffrey Silva, “As such, we could see a DC Circuit ruling late this year or early 2014 that possibly guts anti-discrimination language but retains non-blocking and transparency provisions subject to reasonable network management. The FCC could also retain sufficient legal leverage to intervene where conflicts implicating broadband market power arise.”

But the court may yet surprise the FCC and Verizon. Oral arguments are not always a reliable indicator of how the final ruling will come down.

Federal judges may be ready to rule against Net neutrality (CNET, Sep. 10, 2013)
 
Net Neutrality: Split The Baby, Maybe (Medley Global Advisors, Sep. 9, 2013)

Court Open Internet Surgery Could Give Telco/Cable Net Prioritization New Life (Stifel media, Sep. 10, 2013)