It's difficult to predict how an appeals court will rule after it hears arguments Monday in Verizon Communication's challenge of the U.S. Federal Communications Commission's net neutrality rules.
Groups on both sides of the debate over the FCC's rules prohibiting broadband providers from selectively blocking or slowing traffic say they believe they have a good case at the U.S. Court of Appeals for the District of Columbia Circuit. Reading the court's tea leaves has become as much of a case of wishful thinking as a predictive science.
[ Get your websites up to speed with HTML5 today using the techniques in InfoWorld's HTML5 Deep Dive PDF how-to report. | For a quick, smart take on the news you'll be talking about, check out InfoWorld TechBrief -- subscribe today. ]
On one hand, the same appeals court ruled against the FCC in April 2010, when the agency tried to force Comcast to comply with an Internet policy statement after the cable broadband provider was caught slowing BitTorrent and other bandwidth-hogging applications. The court said then that the FCC lacked "any statutorily mandated responsibility" to enforce network neutrality rules.
The legal situation has changed since then, however. Last December, the same appeals court ruled in favor of the FCC after Verizon Wireless had challenged the agency's authority to impose data roaming rate rules on mobile carriers. The question over the FCC's authority to impose data roaming rules is similar to the one raised by Verizon in the net neutrality case, some telecom experts said.
Then, in May, the U.S. Supreme Court ruled, in a case called City of Arlington v. FCC, that a regulatory agency generally be given broad deference when interpreting its own authority when statutory ambiguity exits. That decision could influence the upcoming appeals court decision, some experts said, although others cautioned that the cases have significant differences.
Adding to the difficulty in predicting an outcome: The court has a number of options it could take. It could strike down the FCC's net neutrality order, it could uphold it, or it could take some type of middle ground. For example, the court could kick back the rules to the FCC by saying the agency may have the authority but hasn't made its case.
Verizon argues that the FCC doesn't have authority to regulate an information service, a class of communications that the agency has previously exempted from most regulation. The net neutrality rules are a violation of Verizon's First Amendment free speech rights and its Fifth Amendment property rights, the company has argued.
The agency has claimed broad authority over broadband using twisted regulatory logic, Verizon's lawyers wrote in their brief to the appeals court. As with the earlier Comcast case, "the FCC has acted without statutory authority to insert itself into this crucial segment of the American economy, while failing to show any factual need to do so," Verizon said in the court brief.