Net neutrality fans and broadband backers clash in court

Lawyers gave oral arguments in the U.S. Court of Appeals in Washington on Friday and faced questions from judges in a case that could reshape the way the government treats both the wired and mobile broadband industries. Broadband service providers such as AT&T are suing to stop the Federal Communications Commission from classifying Internet companies as utilities and banning paid prioritization of specific services.

The judges aren't expected to rule for at least few months, so representatives from each side relied on the judge's questions to gauge which way they might be leaning.

Most of the questions involved technical issues about how the FCC went about setting its new rules, rather than about the rules themselves, said Matt Wood, policy director for pro-neutrality group Free Press.

Some opponents of the rules interpreted those questions differently. They see the FCC headed for a tough fight about the basics of what it's trying to do. The judges may not leave it to the FCC to know what's best, according to Doug Brake, a policy analyst at the Information Technology and Innovation Foundation, which has argued against the new rules.

"The sharp questions from Judges [David] Tatel and [Stephen] Williams make clear the FCC’s classification of broadband Internet access as a common carrier likely pushes beyond the boundaries of the agency’s deference," Brake said in a statement. Congress should decide what to do about net neutrality, he said.

The three judges challenged the FCC on how it could regulate Internet services based on the Telecommunications Act of 1934, why it banned paid prioritization of traffic outright, and other issues, said Daniel Berninger, a plaintiff who's suing because he's starting a company that needs paid prioritization and would be banned under the new rules. He doesn't expect the agency's rules to stand.

Some of the most skeptical questions on Friday concerned so-called interconnection issues, like Comcast versus Netflix, and how the FCC went about extending the net neutrality rules to mobile services, said Kevin Russell, a partner at Goldstein & Russell who argued in court for net neutrality advocates. 

On interconnection, as on other issues, Russell said the judges understood the FCC's argument and he's hopeful they will defer to the agency's judgement.

On mobile, the judges didn't question the FCC's view that services should be regulated the same way on both wired and wireless networks, Russell said. But they probed the agency over whether it had given enough notice that it was looking to expand net neutrality rules to mobile, where they had not applied earlier. There were also questions about whether the regulations the FCC wants to use are too outdated to cover mobile data services, he said.

At this point, the net neutrality backers think the new rules will probably survive. Even if the court issues a split decision that leaves mobile out, the FCC could probably get those services back under the regulations, Russell said. It probably wouldn't even have to ask for public comments again, he said.

But with an issue as complex as net neutrality, where the FCC has been challenged and lost in court before, the outcome and its eventual impact on consumers is far from certain.