And the real lesson from the majority opinion in the Brand X case, according to the FCC, is that the courts should defer to the expertise of agencies when the law is ambiguous. And as the expert agency, the FCC argues, it is free to change its mind. So observers will be closely analyzing the questions from the judges Friday to see how willing they are to defer to the FCC.
Did the FCC overreach by including cellular service?
The second block of time will focus on the FCC’s decision to apply the rules equally to Internet access on home computers and mobile devices. CTIA (the cellular industry’s lobbying association) and AT&T argue that Internet connections on smartphones are really a “private mobile service,” which is exempt from Title II.
To try to avoid that problem, the FCC reclassified cellular data as a “commercial mobile service” in its net-neutrality order. Under the Communications Act’s definition, a commercial mobile service has to connect to the public-switched network, which traditionally meant connecting phone numbers. But the FCC also redefined that term to include Internet addresses. The FCC, its lawyers argued, just “exercised its discretion to update the definition of public-switched network to reflect current technology.” In their court brief, the companies shot back: “That is not an update, but a radical reimagining.”
This separate line of legal attack means the court could strike down just the portion of the regulations that apply to cellular carriers. And with consumers increasingly relying on their smartphones—sometimes as their only way of accessing the Internet—that would be a severe blow to net-neutrality supporters.
Do the rules violate free speech?
Net-neutrality rules are critical for protecting free speech, its supporters say. They argue that Internet providers shouldn’t be able to control what people can read, watch, or say online. But some of the companies suing the FCC claim that it is the regulations themselves that actually violate free speech, and the court set aside 20 minutes to examine the issue.
The First Amendment prohibits the government from ordering people or companies to transmit speech they disagree with, according to Randy May, the president of the Free State Foundation, a conservative think tank that opposes the FCC’s regulations. “I think as a constitutional matter, [the Internet providers] would have the right to block access to a homophobic site if they wanted to exercise that freedom or the right to block access to sites that promoted terrorist activities,” May said.
Harold Feld, the senior vice president of Public Knowledge, a consumer advocacy group that supports net neutrality, warned that it would be a “total disaster” if the court ruled that the regulations violate the First Amendment. Not only would that kill net neutrality, but it would also throw into doubt an array of other FCC rules, such as ones aimed at ensuring universal access to telephone and Internet service. But, Feld predicted, the judges are “going to be very reluctant to dig into the constitutional issues.”
No matter how the D.C. Circuit rules, many observers are expecting that this case will ultimately be bound for the Supreme Court.