Just days before the Federal Communications Commission was set to finalize its controversial net-neutrality regulations, Google scrambled to lobby for a last-minute tweak. In a series of phone calls, which were later disclosed in a regulatory filing, three Google lawyers pressed top FCC officials to retool the legal authority underlying an important part of the regulations. The FCC agreed to the change and enacted the sweeping new Internet regulations on Feb. 26.
At the time, Google’s request seemed like an arcane footnote in the much-broader fight over net neutrality. But now, more than nine months later, that tiny tweak is causing big headaches for the FCC in federal court.
Last Friday, the three judges on a panel of the D.C. Circuit Court of Appeals grilled Jonathan Sallet, the FCC’s general counsel, on the legal classification that Google requested. Peter Keisler, the lawyer for the cable and telecom companies suing to repeal the regulations, also focused a portion of his argument on the issue.
The dispute doesn’t threaten to cripple the core of the FCC’s net-neutrality rules, which require Internet providers to treat all traffic equally. But the late change could lead the court to throw out the FCC’s authority over traffic congestion at the back end of the Internet. That would be a major blow to companies such as Netflix, which have complained that Internet providers are extorting them by demanding payments to relieve congestion at interconnection points. That congestion can lead to grainy video quality and lengthy buffering times, Netflix says.