Parties appealing the FCC’s Restoring Internet Freedom Order to bring back net neutrality, filed their initial briefs with the DC Circuit Court on August 20, 2018. There were two appeals filed. As we will discuss below, neither filing was especially compelling.

The first Petition was filed jointly by consumer advocates, Internet users and industry associations, including Public Knowledge, Mozilla Corporation, Vimeo, Inc., Open Technology Institute, National Hispanic Media Coalition, NTCH, Inc., Benton Foundation, Free Press, Coalition For Internet Openness, Etsy, Inc., Ad Hoc Telecom Users Committee, Center For Democracy And Technology, and Incompas. 

The parties argue that the FCC broke the law by turning all Internet regulation over to the Federal Trade Commission (FTC). They also claim that the Commission acted illegally by ignoring both the millions of filed comments supporting net neutrality and the economic data demonstrating that classifying broadband Internet access service as a telecommunications service did not hurt investment or cost jobs. In a Press Release, supporting the appeal, Public Knowledge’s Senior Counsel John Bergmayer stated,

For the first time, and contradicting every previous FCC to consider the issue, the FCC's current leadership has decided that the agency lacks jurisdiction over broadband entirely. Not only did this radical move violate the statute, but the FCC violated the Administrative Procedure Act by rewriting history and pretending that its latest move is a return to, rather than a rejection of, the bipartisan consensus on the proper role of the FCC with respect to broadband. While past Republican-led FCCs have expressed a preference for ‘light-touch’ regulation, the current leadership has opted instead for a ‘zero-touch’ approach.

Nor is this the only way in which the agency broke the law. It cherry-picked investment evidence that supported its predetermined outcome and ignored evidence that classifying broadband as ‘telecommunications’ did not harm broadband deployment. It conducted a cost-benefit analysis that looked only at the costs and benefits that suited its ideological preferences. And it ignored the hundreds of expert submissions, as well as the comments of millions of ordinary citizens, who explained how Open Internet protections are vital to protect democracy, free expression, and online competition.

The second appeal was filed by a coalition of 23 Attorneys General, including the Attorneys General of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia. The states argued that the FCC acted illegally in prematurely preempting potential state Internet rules. According to Barbara Underwood, the Attorney General of New York:

[The] FCC's order is arbitrary and capricious because it puts consumers at risk of abusive practices by broadband providers, jeopardizes public safety" and that it "unlawfully purports to preempt state and local regulation of broadband service.

For more than fifteen years, the Federal Communications Commission has agreed that an open Internet free from blocking, throttling, or other interference by service providers is critical to ensure that all Americans have access to the advanced telecommunications services that have become essential for daily life. The recent Order represents a dramatic and unjustified departure from this long-standing commitment.

Although both pleadings purport to demonstrate that the Restoring Internet Freedom Order should be repealed because the FCC’s actions were arbitrary and capricious, the appealing parties have their work cut out for them. Under the Chevron Doctrine, the FCC must be given deference if its explanation for its actions are reasonable even if a court would have arrived at a different conclusion. Thus, if the FCC has a reasonable justification for turning Internet regulation over to the FTC (such as that agency has the appropriate tools to ensure good behavior from ISPs by utilizing its anti-trust powers), it’s hard to see how that decision is arbitrary and capricious. 

Similarly, the FCC has preempted state rules many times with court support. It is a simple argument to make that 50 individual state requirements for ISPs would make any federal Internet regulation order unworkable.

The FCC could easily recite flaws in the data explaining why it dismissed economic data that reached the conclusion that investment was not adversely impacted when the previous FCC classified broadband Internet access service as a telecommunications service.

It is also fair to dismiss the comments made by consumers no matter how many, since so many were canned statements sponsored by consumer groups. That is not to say that there isn’t any merit in consumers filing comments, but such comments will have almost no influence in any FCC rulemaking, which is supposed to be based on legal and economic reasoning and not popularity. 

Now despite the Chevron requirement that give the benefit of doubt to the FCC, the DC Circuit could let politics make the final call as so many courts have recently. If that occurs, the Order could be found unlawful. Then the FCC and its supporters will surely appeal the decision to the Supreme Court where conservatives are likely to be in the majority.

Parties seeking to intervene in this case to support one side or another must file briefs by Oct. 18, 2018.  Reply briefs are due Nov. 16, with final briefs due Nov. 27. Oral arguments will be held soon after the final briefs, with a decision expected in early 2019.