FCC's Net Neutrality Rules May Not Survive Court

In a packed Washington courtroom, the US Court of Appeals for the D.C. Circuit heard arguments in Verizon v. Federal Communications Commission, the landmark case challenging the FCC's authority to regulate the Internet.

The panel of three judges was so interested in the case that they extended the oral arguments from the traditional 45 minutes to two hours, still only a short time for a roomful of attorneys to determine the fate of Internet regulation. "I found it chilling -- judges trying to figure out where Internet governance should go," said former FCC commissioner Robert McDowell, now a fellow with the Hudson Institute. By the end of the day, most Washington prognosticators believed the court would strike down at least some, if not all, of the FCC's rules. Many believed the court could "split the baby" in a mixed decision. What seemed especially vulnerable based on the judges' questions is the provision that the FCC can force broadband providers to provide their service free to "edge" companies like Netflix, Amazon or YouTube. Doing so would reclassify Internet service providers as common carrier services -- a move that is prohibited by the Communications Act. If the court strikes the provision, Internet providers, cable and telecommunications companies could charge Netflix-like companies to deliver a better connection to customers.