Advocates Showed During Oral Argument Why Court Must Restore Net Neutrality

On Feb 1, Petitioners (including Public Knowledge) finally got to make their case in court that the Federal Communications Commission’s reckless abdication of responsibility over broadband was illegal. To highlight some of them:

• The Petitioners argued that the FCC violated the Administrative Procedure Act (APA) by failing to explain how and whether antitrust law and Federal Trade Commission enforcement could actually take the place of FCC rules. 
• The FCC adopted a transparency rule, and much of its policy justification hinges on transparency being sufficient to allow the market, and antitrust and general consumer protection law, to work. But it failed to properly ground this rule in statutory authority during the rulemaking process, and the statute it did rely on was subsequently repealed. The FCC was also unable to answer some fairly basic questions about how its rule worked and its likely efficacy. Given that the transparency rule is invalid, the entire order must be vacated.
• The FCC also argued that DNS and caching -- which it has conceded are the only relevant "information processing" components of broadband -- do not fall within the “telecommunications management exception.” But this relies on inaccurate characterizations of the FCC's own precedent, and misleading citations of decisions from the Modification of the Final Judgment (MFJ) court of Judge Harold Greene.
• Local government intervenors noted that the FCC failed to even consider strong public safety arguments put forward by some local governments. Not only was it required to respond to substantive comments in the record, it has a statutory responsibility to promote and protect public safety as well. This argument got quite a bit of traction on the bench and is particularly relevant given that Verizon throttled data services used by firefighters combating 2018’s California wildfires.
• State government intervenors argued that if the FCC claims to have no authority to regulate broadband, it likewise lacks the authority to preempt states from doing so. 

On balance, I come away from the argument fairly confident of a victory for Petitioners, though as to how sweeping of a victory, and on what precise grounds, it is as difficult as ever to say.