Recently, California has gotten a lot of publicity for its new Net Neutrality Law which spits in the eye of the FCC’s efforts to eliminate virtually all Internet regulation. However, as noteworthy as this Law is, it is the side attraction in the ever-evolving net neutrality war. The real action is taking place at the DC Circuit Court of Appeals, where a diverse group of Petitioners including states and Internet users have appealed the FCC’s Restoring Internet Freedom Order. That appeal continues to progress, with oral argument scheduled for February 1, 2019. In the meantime, on October 11, 2019, the Commission filed its “Brief for Respondents,” defending its repeal of the net neutrality rules. In its Brief, the agency made the following arguments:

The Commission reasonably classified broadband Internet access service (BIAS) as an information service – This is reasonable classification since BIAS provides users the capability for acquiring and retrieving information from websites and applications and utilizing information by interacting with stored data. This is consistent with a Supreme Court decision which found that it was reasonable for the Commission to conclude that Internet access is an information service, given that subscribers can reach third-party Web sites via the World Wide Web, and browse their contents. 

The Commission reasonably determined that mobile broadband Internet access service is not a commercial mobile service subject to common carrier regulation but is instead a private mobile service immune from such regulation - That conclusion reflects a reasonable reading of the Act and ensures that mobile broadband is not regulated differently from fixed broadband. A mobile service qualifies as a commercial mobile service only if it makes interconnected service available to the public. Section 332 of the Telecommunications Act defines “interconnected service” as “service that is interconnected with the public switched network. The Commission’s decision to restore its original definition of the public switched network falls well within its discretion and comports with the ordinary meaning of that term. The Commission then reasonably concluded that mobile broadband does not provide “interconnected service” because it does not enable broadband users to communicate with all users of the public switched telephone network. 

Given these classification decisions, the Commission determined that the Telecommunications Act does not endow it with legal authority to retain the former Internet “bright line” rules, including forbidding blocking, throttling or paid prioritization of Internet traffic -  The Act forbids common-carriage regulation of information services, and Section 332(c)(2) further forbids common-carriage treatment of private mobile services. Maintaining the bright-line rules would, therefore, contravene the Act. The Commission also independently determined that the bright-line rules are unwarranted. The new transparency rule, market forces, and the Federal Trade Commission’s preexisting antitrust and consumer protection laws provide substantial protection against harmful conduct, and they do so at considerably less cost than rigid ex-ante prohibitions or the vague Internet Conduct Standard. 

The Commission also reasonably considered the Order’s impact on investment, competition, reliance interests, and government services - The agency reasonably found that the record is consistent with its determination that Title II regulation discourages broadband investment and deployment. It also reasonably determined that broadband providers face competitive constraints that, together with preexisting antitrust and consumer protection laws, limit their ability to engage in harmful conduct under a light-touch regulatory framework. 

The Commission reasonably determined that any state or local efforts to impose more stringent requirements on broadband service should be preempted - Broadband is a predominantly interstate service and should therefore be governed by uniform federal regulation rather than a patchwork of separate state and local requirements. States are free to regulate intrastate services but cannot regulate services that cross state lines such as Internet access. 

The opinion here is that the Court, even while its majority liberal judges might disagree with the decision, will find that the FCC did not act in an arbitrary and capricious manner in the Restoring Internet Access Order. This is especially true since this is how the Internet was regulated for years before the Obama-era FCC instituted the net neutrality rules. 

Moreover, it is difficult to argue that BIAS is anything but an interstate service that lawfully falls under the FCC’s jurisdiction. 

Even if the FCC loses at the DC Circuit, it now has a “trump” card, a solidly conservative Supreme Court that will surely support this FCC’s decisions. Now might be a good time for Congressional Democrats to stop pushing for a meaningless Title II “telecommunications” classification for BIAS and start working on a net neutrality compromise that would keep the “bright line” net neutrality rules in effect.