“DC Circ. Sets Net Neutrality Oral Arguments For February”

Via Law360

By: Kelcee Griffis

The D.C. Circuit has set oral arguments in the consolidated net neutrality cases for the morning of Feb. 1, when attorneys in the contentious suit will get face time with the court to air their positions against the Federal Communications Commission’s deregulation of internet service providers.

According to the Friday order, the court will begin arguments at 9:30 a.m. on that day, but more details about how the testimony will be apportioned will be released as the date gets closer.

The FCC decision at issue overturned prohibitions on internet service providers, or ISPs blocking, throttling or granting paid prioritization to preferred web content, and it reclassified the internet as a Title I information service. The reclassification returned online abuses to the regulatory sphere of the Federal Trade Commission, as the internet had been treated before the 2015 Open Internet Order took effect. The FCC’s Republican majority says the move will return the internet to the “light touch” regulatory framework that helped the web thrive in its early stages.

Petitioners in the case disagree with that optimistic view of deregulation. In opening briefs, critics including Mozilla and Public Knowledge said the agency backfilled its reasoning for scrapping the regulatory regime and ignored millions of public comments that urged the commission to leave the Obama-era rules intact. Other primary challengers include Etsy, Incompas, nearly two dozen state attorneys general and other government entities.

Amicus filers that chimed in to support the petitioners include Twilio, the Internet Association, the Computer and Communications Industry Association, Consumers Union and Engine Advocacy. Those groups argued in amicus briefs that the FCC ignored data that suggested the market for internet services isn’t competitive and refuted the FCC’s reasoning that broadband providers will be held in check by fierce broadband competition in most communities, among other points.

In particular, Twilio took issue with the FCC’s reasoning for its actions, which the agency described as necessary to encourage broadband providers to invest in and expand their networks. However, Twilio said, contradictory evidence suggests new products and services are most likely to proliferate and drive demand for network capacity when platforms are guaranteed unbiased internet access. Engine similarly said the reversal harms venture investors and startups that relie on the open internet rules.

The consolidated case was originally assigned to be heard in California, but the parties won an unopposed transfer to the D.C. Circuit, where other net neutrality cases have played out. Final briefs are due Nov. 27, according to the docket.

Mozilla is represented by Markham C. Erickson and Georgios Leris of Steptoe & Johnson LLP.  Public Knowledge is represented by Kevin Kendrick Russell of Goldstein & Russell PC.

Twilio is represented by Adrienne E. Fowler of Harris Wiltshire & Grannis LLP. CCIA is represented in-house by Matt Schruers and John A. Howes Jr. The Internet Association is represented by Christopher J. Wright, Scott Blake Harris, Stephanie Weiner and E. Austin Bonner of Harris Wiltshire & Grannis LLP. Consumers Union is represented by Andrew Jay Schwartzman and James T. Graves of the Institute for Public Representation at Georgetown University Law Center. Engine is represented by Christopher T. Bavitz of the Cyberlaw Clinic at Harvard Law School.

The FCC’s in-house representation includes lead counsel Thomas M. Johnson Jr.

The lead case is Mozilla Corp. v. FCC, case number 18-1051, in the U.S. Court of Appeals for the District of Columbia.