Perhaps as soon as tomorrow, a federal appeals court in Washington will decide whether or not the Federal Communications Commission 1. has the legal authority to impose common carrier rules on broadband service and 2. whether it followed all the necessary procedures when it did so.
The challenge was filed by a nearly universal coalition of big (and a few small) Internet service providers, who, naturally enough, do not want the FCC telling them how to run their businesses, whether or not it’s with the promised (but not guaranteed) light touch. Arguments were heard last December, and we’ve been waiting for a ruling ever since.
It’s the second time that the FCC has gone to court to defend what are generally referred to as network neutrality rules. It lost the first time around in 2014, but the court’s opinion amounted to a road map showing the FCC a couple of different routes it might take to achieve the same end.
The path the FCC chose was to declare that broadband is a common carrier service – like 19th century trains and 20th century telephone systems – and therefore subject to detailed oversight of business practices, including prices, terms of service and whether or not network traffic can be prioritised according to content.
In its decision, the FCC declined to exercise most of that authority for now, and perhaps forever. Or perhaps not. But either way, it appears to be on firm legal ground. To the big question of whether the FCC has the authority to reclassify broadband as a common carrier service, I expect the appeals court to say yes.
Procedural issues are another matter. It’s easy to look at any complicated, bureaucratic process and find fault with the details. It’s possible the court will just hand wave the whole thing and say close enough for government work. But I think it’s likelier it’ll do some trimming around the edges, without meaningfully changing the outcome.
There’s no particular schedule, but based on typical time frames for these kinds of decisions, we should know soon.