Back in August, in a bid to defend net neutrality, Mozilla filed a case against the FCC, opposing the FCC’s rollback of the laws that defend users against the interests of ISPs. Today, the oral arguments in that case have come to court in Washington D.C., making it an important day in the fight to save the very principle of net neutrality.
What is net neutrality and why did the FCC roll it back?
To understand the significance of today, it’s important to know what net neutrality is, exactly, and how and why the FCC removed the rules that put it in place.
Essentially, net neutrality is the principle that all internet service providers must treat all content and services equally. It means your internet provider can’t slow your access to Netflix, or prevent you from accessing any other content for commercial reasons. Essentially net neutrality protects users like you and me, and prevents a market emerging where companies and individuals can pay more for faster speeds or more access to services.
The argument against net neutrality is grounded in the liberal economic principle that understands regulation as necessarily restrictive. It suggests that regulation will actually lead to price rises, rather than pushing them down.
From a political perspective too, the argument is that regulating the internet in this way effectively puts it under government control – that’s misleading, but it’s easy to see how that argument can be peddled.
The two key arguments in the net neutrality case against the FCC
The case will center upon two arguments. The first is whether the FCC’s decision to repeal the legislation was warranted in the first place. As a Federal agency, the FCC is forbidden by the Administrative Procedure Act to make decisions that could be described as “arbitrary and capricious.”
In essence, this means they can’t make decisions based on the opinions and personal judgements of those that lead the organization. All regulatory decisions need to be clear and considered, and, of course, backed up by compelling evidence.
From the FCC’s perspective, the decision to repeal net neutrality legislation was sound. The agency argued, for example, that the rules were damaging investment in infrastructure, and restricting private businesses to develop their products and services in a way that would ultimately benefit users. This position has, however, been disputed by a Wired report that found that investment was high from market leaders during the period when net neutrality legislation was in place.
The second point that will be crucial is whether ISPs are simply an information service or telecommunications provider. This distinction is important – information services are less tightly regulated than telecommunications (think of all the various ways subscription services make money).
Under net neutrality rules, ISPs are regarded as telecommunications companies – by removing net neutrality rules, the FCC is saying they are merely information services.
At court already this morning, Pantelis Michalopoulos, one of the plaintiff attorneys against the FCC, compared the assertion that an ISP isn’t a telecommunications company to Magritte’s famous painting The Treachery of Images. “This is like a surrealist painting that shows a pipe and says ‘this is not a pipe,’” The EFF reports he said in court.
Michalopoulos on the FCC's argument that an ISP is not a telecommunications service: “This is like a surrealist painting that shows a pipe and says ‘this is not a pipe’” pic.twitter.com/cpTalzgyCx
— EFF Live Tweets (@EFFLive) February 1, 2019
How to follow the case
Representatives from the Electronic Frontier Foundation are live tweeting from the courtroom from @EFFLive. If you want to follow the debates and arguments – as well as plenty of useful commentary and information from the EFF, make sure you follow them.