In an event sure to garner significant attention from tech, consumer protection, and government stakeholders, oral argument on the consolidated appeals of the FCC’s Restoring Internet Freedom Order (“Order”) will take place on February 1, 2019, at the D.C. Circuit. As we previously discussed, the Order largely reversed the FCC’s own 2015 rulemaking to reclassify broadband internet access services (“BIAS”) as telecommunications services subject to a host of Title II common carrier obligations. The Order re-reclassified BIAS as information services subject to “light-touch” Title I regulations, while retaining pared-down transparency requirements on BIAS providers. The challengers allege that the FCC failed to adequately explain its changed regulatory approach, relied on faulty data, and ignored consumer complaints when issuing the Order. The oral argument will provide our first indication of which way the D.C. Circuit, which handled the last three appeals of FCC net neutrality rules with varied results, may go in this latest challenge.
Even with the appeal moving forward, action on net neutrality legislation continues on multiple fronts. While federal net neutrality bills may be stalled in Congress until after the mid-term elections, states continue to propose and adopt legislation and executive actions aimed at incentivizing BIAS providers to abide by the FCC’s 2015 net neutrality rules. These moves complicate the legal environment for BIAS providers as they attempt to navigate the non-uniform patchwork of state-level actions. The oral argument also comes less than a year after the Ninth Circuit’s decision giving the Federal Trade Commission broad authority over practices not classified by the FCC as telecommunications services, which includes BIAS (at least for now). A D.C. Circuit decision reversing the Order could undermine the FTC’s authority over BIAS providers and result in further legal challenges. In short, the oral argument represents only the next step in the continuing debate over the appropriate regulatory regime for broadband services and their providers. We will continue to track the appeal and report on any major developments.