What Happened At The Net Neutrality Oral Argument

[Commentary] Verizon and the Federal Communications Commission (FCC) had an oral argument before the D.C. Circuit Court debating the network neutrality rules. The argument took place before Judge Rogers, Judge Tatel, and Senior Judge Silberman. Short version: three judges, three opinions.

Judge Rogers seemed most likely to affirm the FCC and the rule. Judge Tatel wanted to eliminate the non-discrimination rule but keep the no blocking rule. Judge Silberman wanted to get rid of both the no blocking rule and the no discrimination rule – although would be happy to get rid of all the rules because the FCC did not make an explicit finding of “market power.” All three judges seemed comfortable with the idea that Congress has delegated the FCC authority to do some kind of regulation of broadband access under some set of circumstances, although Judge Silberman was not happy that the FCC did not make an explicit finding of “market power” (even if everyone agreed the point of the rule is that, market power or not, Verizon is a potential bottleneck). No one else wanted to play amateur economist with Judge Silberman, so the court seems likely to affirm the FCC’s overall authority to regulate broadband access providers to promote broadband deployment.

The panel then moved on to this question: assuming the FCC has general authority to make some kind of rule under some conditions, does something prevent the FCC from adopting these particular rules? There were two basic arguments. First, Verizon argued it had a first amendment right to block content on its network. This got some modest attention from Judge Silberman; but, again, neither of the other judges seemed interested. Verizon’s other argument, that the statute prevents the FCC from regulating it as a “common carrier” when it provides broadband service, got the bulk of the attention. The three judges now have to come to a decision where at least two of the three of them agree on a result. That could take some time, and they have no deadline for when to decide.