The battle over net neutrality is far from over.
A big federal court case against the FCC
Supporters of the Obama-era net neutrality rules — which were intended to prevent Internet providers from blocking, slowing or selectively speeding up apps and services — have taken the FCC to court to overturn its repeal decision. That case goes to oral arguments in early February.
On Wednesday, the U.S. Court of Appeals for the District of Columbia Circuit revealed the names of the three judges who will be deciding the case: Judith W. Rogers, Patricia A. Millett and Stephen F. Williams.
Of the three, Williams is a familiar face. Appointed to the court by President Ronald Reagan, Williams served on the three-judge panel that heard the case on net neutrality when the Obama-era rules were challenged by broadband companies. In 2016, he was the only judge who dissented — although that was only to part of the ruling — to the decision that upheld the regulations.
The two other judges for the February hearing are both Democratic appointees: Rogers was nominated by Bill Clinton and Millett by Barack Obama. Millett has argued forcefully for reproductive rights and has been called a “worthy successor to Ruth Bader Ginsburg,” according to Slate.
Rogers is considered a politically moderate judge who is meticulous in her knowledge of the way federal agencies properly make decisions — which will be the key issue facing the court when groups such as Mozilla face off against the FCC on Feb. 1.
Rogers’s understated style and mild manner are not likely to give away to the courtroom which arguments she finds more compelling. But persuading her is likely the key to victory, said Andrew Schwartzman, a lecturer in law at Georgetown University.
“Judge Rogers is the vote that the FCC needs to win,” said Schwartzman, adding few things are ever certain when it comes to speculating about court decisions.
The states vs. the federal government
The D.C. Circuit’s decision is expected to set the tone for other court fights over net neutrality, in particular the Trump administration’s legal efforts to block the state of California from enforcing its own net neutrality legislation.
The state law, which is regarded as the strongest in the nation because it prohibits some ISP activities the FCC’s original rules did not, was passed last year. But moments after it was signed by Gov. Jerry Brown (D), the Justice Department announced it would sue the state.
A month later, the two sides agreed to a truce: The legislation still took effect on Jan. 1, but California is not enforcing the law; the Justice Department is suspending its litigation until the D.C. Circuit case is resolved.
That resolution could take more time than anticipated, however: The partial government shutdown is expected to close the FCC’s doors on Thursday, forcing the agency to send home all but its most critical support personnel. Meanwhile, the federal court system has enough money to operate through Jan. 11. While oral arguments at the D.C. Circuit will continue through January, according to the court’s website, there is no word on whether the Feb. 1 oral argument on net neutrality will be postponed.
If and when the D.C. Circuit finally hears the case and issues an opinion, expect the battle to continue over whether states can legally establish net neutrality laws independent of the FCC. Beyond the case involving California, Internet providers have sued the state of Vermont over its attempt to implement net neutrality rules using state legislation and an executive order. The state-vs.-federal debate could significantly shape the power of state governments on a range of issues, not just net neutrality.
What about legislation?
Many experts had hoped Congress would finish the net neutrality fight decisively with clear legislation that lays out how Internet providers can and cannot manipulate online content.
The broadband industry has pushed particularly hard for a federal bill, concerned about a possible patchwork of multi-state laws.
“Ultimately, only Congress can provide the certainty consumers and businesses need and must redouble its efforts to pass a permanent, modern, and sustainable open internet framework for all Americans,” said Jonathan Spalter, president of the industry trade group USTelecom. “That’s a challenge in this current atmosphere, but the stakes for connectivity and innovation are too high not to be optimistic that this will be the year.”
But other analysts say the split partisan control of Capitol Hill is not likely to lead to much compromise.
“It’s conceivable that Congress will settle net neutrality once and for all in the next 18 months, but I’m skeptical,” said Paul Gallant, a telecom industry analyst at Cowen Research.
Surveys show most average Americans aren’t that far apart on net neutrality. But Democratic and Republican lawmakers do not share much common ground on the issue.
What’s more, there are foreign forces involved in net neutrality, as well. In October, the Justice Department revealed — in a 38-page indictment against an accused Russian disinformation operative — foreign attempts to interfere in U.S. elections included efforts to use net neutrality as a wedge.