Here’s how the FCC plans to defend its net neutrality repeal in federal court (updated)

The Federal Communications Commission told the US Court of Appeals for the District of Columbia Circuit that it acted properly when it repealed the US government’s net neutrality rules in 2017, marking its first legal salvo in a campaign to battle back 22 states and tech companies including Mozilla, Facebook, and Google that contend the agency’s move was illegal. The FCC said it was perfectly within its right to rethink how it regulated those internet service providers, citing a landmark Supreme Court decision outlining the agency’s powers from 2005. And the FCC said that its evidence showed the Obama-era net neutrality rules had stifled investment in broadband expansion, justifying the decision to wipe the protections off its books.

The FCC’s filing sets the stage for what is universally expected to be a protracted, heated legal battle over the government’s ability to regulate the Internet. State attorneys general, consumer advocates, and top tech companies all have sharply rebuked the FCC’s rationale for eliminating net neutrality rules, pointing to the millions of web users who wrote the agency in defense of those federal protections, while telecom giants have backed the Trump administration’s move. In the end, their war could be destined for the Supreme Court. If that happens, experts are closely watching the court’s newest justice, Brett Kavanaugh, who questioned the FCC’s authority to adopt sweeping net neutrality protections as part of a dissent he wrote in a related case in 2017.

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The commission defended its repeal of the Obama-era net neutrality regulations to a federal appeals court by arguing that both legal and policy analysis support the rollback. The decision to reclassify broadband internet as an information service — which has less regulatory oversight — is consistent with Supreme Court precedent, the FCC said in a brief responding to the challenge in the D.C. Circuit Court brought by tech companies, net neutrality advocacy groups, and state attorneys general.

The agency told the court that pre-existing antitrust and consumer protection laws, as well as its transparency rule, are enough to protect against harmful conduct by ISPs. “While it reflects different judgments than the Commission made in 2015, the Commission had ample discretion, following a ‘change in administrations,’ to reevaluate its policies,” the FCC wrote in the brief.

The FCC also defended its ability to pre-empt state efforts to impose more stringent broadband regulations, arguing such laws conflict with the federal deregulatory policy. The issue is key to pending litigation over California’s law restoring net neutrality rules.