A federal court is taking more time than normal to release a ruling on the legality of “net neutrality” regulations passed by the Federal Communications Commission in 2015, intensifying the speculation of the outcome on both sides of the argument.
Conservative critics hope the court finds a reason to strike them down now more than ever, because the timing could make it especially difficult for the FCC’s Democratic majority to resolve the situation before President Obama leaves office.
The rules have been tied up in the District Court for the District of Columbia ever since they were challenged by telecommunication providers and trade groups like the National Cable & Telecommunications Association, which represents providers like AT&T, Verizon, Sprint and T-Mobile.
Observers had expected the challenge to the FCC’s Open Internet Order, which reclassified broadband providers as public utilities, giving the commission authority to engage in rate regulation and influence investment in new infrastructure, to reach a conclusion by April at the latest. However, the court left that expectation in the dust, prolonging speculation on the possible outcome.
Critics of the rules suggest they would be satisified if the court simply found the FCC didn’t follow the appropriate procedural guidelines, asking that they be passed again. “There’s no crystal ball, but a likely scenario is that this decision will be remanded back to the FCC on procedural grounds,” said Drew Johnson, the executive director of a nonprofit called Protect Internet Freedom.
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“If the court rules on notice grounds, the FCC would need to seek additional public comment before adopting [new] rules,” said Fred Campbell, the head of an organization called Tech Knowledge. “The current administration could conceivably get that done before the end of the year, but that depends in part on how long the court takes to make its decision.”
Beyond the FCC’s alleged failure to follow minor procedural guidelines, critics hope their arguments that the agency improperly coordinated with the president and exceeded its statutory authority will have particular salience with the court.
“If the FCC had followed the case-by-case approach to overseeing net neutrality that the court approved in a previous decision, the FCC would have been on solid legal ground. But the president’s insistence on bright-line rules has instead put the FCC in a precarious legal position,” Campbell said.
Those bright-line rules included a strict prohibition on giving customers the option of paying for different tiers of service, which the administration and Democrats on the FCC refer to as “throttling” or “prioritizing” traffic.
Campbell said those rules exceeded the statutory authority that Congress granted the agency. “The strongest legal argument is that the FCC lacks jurisdiction to apply public utility regulation to the mobile Internet,” Campbell said. “A statutory definition that applies specifically to mobile services indicates the FCC can’t treat the mobile Internet as if it were part of the traditional telephone network, which is what the rules do.”
If the court waits until mid-summer to release a decision, it could be nearly impossible for the Obama administration to amend the rules in time to pass them again before the president leaves office. That would leave it with just one option, an appeal to the Supreme Court, for trying to keep the rules in place.
“There is no deadline for the court to make a decision,” Campbell said. “It could issue an opinion any day now, but given the complexity of the case, it might decide to wait until summer when it’s not hearing new cases.”
