The Net Neutrality Battle Continues

The battle over net neutrality has been marked by breakneck momentum shifts, plenty of legal action, but little in the way of permanence. Now, the most notable of several lawsuits challenging the 2017 FCC repeal is having its day in court, which could put an end to the uncertainty surrounding the issue. Below, we take a closer look at the lawsuit that may very well settle the contentious national issue of net neutrality.

Mozilla v. FCC and the Post-Repeal Landscape

In December 2017, FCC chairman Ajit Pai, repealed the net neutrality regulations set forth during the Obama Administration, stating that the FCC “would simply require internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them.”

The 2017 repeal was inevitably met by several lawsuits from states, companies, lobbyists, and more. The tangle of cases has meant an uncertain future for the repeal, but “the most prominent lawsuit” of the bunch could begin to lend some clarity to the fight over net neutrality.

That suit, led by Firefox-developer Mozilla and supported by 22 state attorneys general, opened oral arguments on February 1 at the DC Court of Appeals. Mozilla and its fellow plaintiffs allege that the FCC “lacked a sound legal reason” for eliminating net neutrality regulations. “Nothing has changed since the 2015 rulemaking but the leadership of the FCC,” Lisa Hayes, general counsel for the Center of Democracy & Technology, told Gizmodo. “The FCC lacks compelling evidence justifying its 2018 order, and I expect the DC Circuit will find that the FCC’s actions were arbitrary and capricious.”

As expected, the FCC argued that they were within their rights to reclassify broadband as an information service, not a utility, and therefore subject to less regulation. Tom Johnson, general counsel for the FCC, argued that the “inextricably [intertwined]” services of transmitting and processing information “via domain name services and caching” – affirmed by a 2005 Supreme Court decision – upheld that view. They further argued that the pressures of competition, antitrust provisions, and consumer protections were enough to police ISP behavior without undue regulatory burden.

Potential Outcomes and Additional Battlegrounds

While a ruling in Mozilla v. FCC is expected by the summer, there is no guarantee of a timely conclusion, and potential appeals could mean years before a final resolution. One outcome, posited by the New York Times’ Cecilia Kang, is that a positive verdict for Mozilla could mean the FCC “might try to rewrite its order rolling back the rules to avoid further legal challenges.”

That strategy would be pertinent – after the FCC rollback, 30-plus states proposed some form of net neutrality protections, with nine passing laws in approval. Doing so has “complicated the enforcement of the laws” and led to countersuits on behalf of the US Justice Department and the USTelecom trade group.

A makeshift, variable set of rules is hardly ideal for ISPs – the federal government has “argued that the internet’s global nature makes it harder to regulate state by state.” Experts believe Congress will introduce a binding, nationwide set of rules this year, but political divides – Democrats trending pro-regulation, Republicans leaning towards a hands-off approach in a Republican-majority Senate – mean that the status quo and its back-and-forth shifts will likely remain for the moment.

That means the net neutrality landscape remains murky. Both sides will watch the Mozilla v. FCC case with interest – barring national legislation, it will have the greatest and most immediate effect in shaping net neutrality’s future. Finality may be faintly visible on the horizon, but for now, there is no end in sight to the reactionary nature of the net neutrality debate.

Quandary Peak Research

Based in Los Angeles, Quandary Peak Research provides software litigation consulting and expert witness services. We rapidly analyze large code bases, design documents, performance and usage statistics, and other data to answer technical questions about the structure and behavior of software systems.