Net Neutrality is going to court! Oral arguments in the lawsuit over the Federal Communications Commission’s Open Internet order begin on Friday December 4th. We asked Andy Lomeli, Policy Associate with the National Hispanic Media Coalition, to break down what this lawsuit is about and why it matters.
1. For starters, can you provide us a brief background on what Net Neutrality is?
Net Neutrality describes the general principle that your Internet Service Provider (ISP) cannot block, slow down, or otherwise interfere with legal content that you seek out online. Service providers could have financial incentives to prevent you from accessing certain services online; for example, if an ISP runs its own streaming movie service, it may create artificial barriers to disrupt you from enjoying a competing service such as Netflix.
For communities of color, Net Neutrality has been imperative in gaining socioeconomic empowerment. A free and open Internet allows us to tell our own stories and connect with people in ways we never thought possible. Anyone with access to the Internet can share their ideas, market their own products, coordinate rallies and engage in social movements across thousands of miles without having to worry about ISPs serving as gatekeepers and deciding what and when you can see when going online.
In February of this year, the FCC passed the strongest Net Neutrality rules that we’ve ever had. They reclassified both mobile and wired broadband Internet access service as a common carrier service, which allowed them to ban harmful discriminatory practices like paid fast lanes, slow lanes, and blocking of lawful content. These rules are on the books today meaning that we can all take advantage of them if we feel our ISPs are treating us unfairly or failing to provide us with the service that we pay for.
2. So the Federal Communications Commission adopted Net Neutrality rules earlier this year. Then they got sued, what is the lawsuit about?
A few ISPs are combating the rules in court, arguing that they are unlawful for all sorts of different reasons—none of which, though, we feel really hold water.
One of the major arguments is that the FCC does not have the authority to regulate broadband Internet service providers, but in fact Congress and precedent from previous court cases allows the FCC to implement consumer protections. They also argue the FCC did not give proper notice that it was considering reclassifying broadband – a weak argument considering how many millions of concerned consumers filed comments with the FCC asking for reclassification. ISPs also argue that the FCC doesn’t have the authority to regulate mobile broadband.
One ISP even went so far as to say that the FCC’s rules violated its First Amendment rights. It argued that, in offering Internet access service, it should be treated like a newspaper publisher – free to pick and choose what information it wants to carry. This type of argument is precisely why we feel the FCC’s rules are so critical. Our ISPs, which we are already paying very high prices for service, should not be able to pick and choose what we see and do online.
3.What is happening on December 4th that pertains to this lawsuit?
A panel of three judges from the DC Circuit Court of Appeals will listen to oral arguments from the lawsuit’s different parties. Essentially, attorneys representing the ISPs, the FCC, public interest groups, and other parties, will be able to verbally present the arguments they have written down in their briefs and respond to questions from the judges. Not only is this process important for allowing the judges to dig into the legal arguments that are included in briefs, but it often provides observers with some insight into how each judge is thinking about the case. After oral arguments, it will still take some time for the court to write a decision, but December 4 is certainly important in in gauging preliminary thoughts from the judges.
4. Our network, MAG-Net, along with NHMC and others filed an amicus brief. What is that and what’s our role in the lawsuit?
NHMC joined with MAG-Net and several other civil rights and public interest groups as “friends of the court” arguing in favor of the FCC’s rules. In a “ friend of the court” brief, interested parties share their expertise on the issue at hand with the judges in an effort to help them understand all sides of the issue. Within our brief, we argued the importance of Net Neutrality for communities of color. Specifically, entrepreneurs of color have historically faced barriers to entering traditional markets and accessing capital. The open Internet, however, allows these companies to find new, innovative means of access. Likewise, stories that are not traditionally covered by mass media, specifically police brutality targeted toward communities of color, are reaching larger audiences because we can more readily share our stories via social media and alternative news outlets without traditional gatekeepers.
5. If the FCC loses and Net Neutrality is overturned, what happens?
There are many parts of their decision being challenged. That means, potentially, the FCC could lose on authority, meaning that all of their rules based on that authority would be invalid, or they could lose on one of the smaller issues in the case, invalidating some of the actions that they have taken but, perhaps, not all. If they lose on anything, the FCC could go to the Supreme Court or take the DC Circuit up on what will likely be a remand back to the agency to remedy any issues with the rules. When the FCC lost in 2014, they didn’t go to the Supreme Court but launched the proceeding that wrapped up in February, responsive to the court’s direction, leading to the current rules.
6. Do you think the FCC will win?
Yes, we think that the FCC has a good shot at victory in this case. Not only does the FCC have clear statutory authority to enact the rules that they ultimately passed, but they ran an incredibly transparent and effective process at soliciting input on the rules from all interested parties and the general public. Beyond that, the case is back at the DC Circuit, which, in its 2014 decision, spelled out exactly what the FCC would need to do to sustain rules against blocking and harmful discrimination. By reclassifying Internet access service as a common carrier service, the FCC did exactly what the court told it to do to issue the strongest consumer protections possible.