That earlier Comcast decision from the same court presents a major "hurdle" for the FCC, said Randolph May, president of the Free State Foundation, a free market think tank that has joined a brief calling for the court to overturn the rules. Although the FCC, in its 2011 net neutrality order, "made an effort to beef up its argument that it possesses authority under the Communications Act to regulate Internet access service, I think the overall impression is that the agency is reaching too far," May said by email.
May would lean toward the FCC losing the case, he said. The court will look at whether the FCC's net neutrality rules were reasonable, May said, and many critics have argued the regulations were unnecessary because there have been few examples of violations.
"Even if the court finds that the FCC possesses authority under the statute, there is a pretty good chance the court will find, in light of the lack of persuasive findings concerning market failure, consumer harm, or impact on investment and innovation, that the agency's decision is arbitrary and capricious," May said.
The Free State Foundation, free market think tank TechFreedom and other critics of the net neutrality rules argue in their brief that the U.S. government could police major violations of net neutrality principles under existing antitrust law.
If the appeals court strikes down the rules, "net neutrality will be dealt with the same way concerns about competition are dealt with throughout the rest of the economy," Berin Szoka, president of TechFreedom, said by email.
The TechFreedom/Free State Foundation brief also repeats concerns that the rules violate broadband providers' free speech rights. "By denying Internet service providers their editorial discretion and by compelling them to convey content providers' messages with which they may disagree, the Order violates broadband providers' First Amendment rights," the brief says.
The First Amendment and Fifth Amendment concerns are "silly," countered Matt Wood, policy director at Free Press, a digital rights group that has pushed for strong net neutrality rules. The FCC hasn't taken away Verizon's ability to communicate on its website or its blogs, and the agency hasn't taken away the carrier's network, he said.
Verizon's argument that its free speech is impacted when it provides the pipes for other people's messages is "contrary to the notion to what a carrier does and how the Internet works," he said.
Verizon, during other debates, has argued it should not be held responsible for the communications of its broadband customers, says the Center for Democracy and Technology and a group of legal scholars in their brief to the appeals court.
The FCC's order does not violate Verizon's free speech rights, but "instead protects the First Amendment interests of Internet users," CDT says in the brief. "Certainly, Verizon often does speak via the Internet, using websites, blogs, email, social media, and the like. But its separate conduct in transmitting the speech of others should not be confused with Verizon's own speech."
Still, the FCC's argument that it has so-called ancillary authority to regulate broadband because it has authority over other communications services may be a tough sell, Wood said. The appeals court rejected the ancillary authority in the 2010 Comcast case, he noted.
The Supreme Court's City of Arlington case and the data roaming case give the FCC a "mini winning streak," however, Wood said. He gives the FCC a "close to 50 percent chance" of winning the Verizon case.
The FCC has a good chance of winning, countered Michael Weinberg, a vice president at digital rights group Public Knowledge. The agency is "basically right" in arguing it has the authority to regulate broadband under the Communications Act, he said.
The agency had potential court challenges in mind when it drafted the net neutrality order, Weinberg said. "The FCC was thoughtful about this," he said.
Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is firstname.lastname@example.org.