The Federal Communication Commission (FCC) is facing tough questions over its decision to overturn the Obama-era rules, and is faced with a legal challenge in the US Federal court system from a number of US states.
However the US Supreme Court in November declined to hear an appeal that could have watered down regulators’ authority to impose net neutrality rules.
Despite that setback in the meantime a Federal appeal is working its way through the US Court of Appeals for the District of Columbia.
A group of 22 state attorneys general and the District of Columbia have asked the appeals court to reinstate the rules and to block the FCC’s effort to pre-empt states from imposing their own rules guaranteeing an open internet. Mozilla is also part of the court case.
The panel of judges according to Reuters, heard more than four hours of arguments in the first courtroom outing on the matter.
The arguments reportedly focused on how internet providers should be classified under law – either as information service providers as the Trump administration decided or as a public utility, which subjects companies to more rigorous regulations.
The arguments also centred on whether the FCC adhered to procedural rules in dismantling the Obama-era rules.
“We are creating rules that are built to last,” FCC general counsel Tom Johnson told the court, when he was repeatedly pressed by Judge Patricia Millett over the FCC’s legal basis for treating telephone calls differently than internet traffic, and she asked if the FCC had properly considered the public safety impacts.
Judge Millett reportedly raised the example of police needing to send urgent photos or video of a suspect that could be delayed if some internet traffic was prioritised.
“We can’t anticipate all harms,” Johnson replied. And as he sought to play down the concern Judge Millett interjected: “There’s no evidence because they haven’t done it yet.”
The appeals panel is made up of Judges Millet and Robert Wilkins, two appointees of Democratic former President Barack Obama, and Stephen Williams, an appointee of Ronald Reagan, who of course was a republican.
But the US states were also challenged by the FCC team over their legal rationale for seeking reinstatement of the rules.
It should be remembered that a number of US states, including Washington State, have already adopted their own net neutrality laws after the FCC decision.
And last year California (the most populous US state) officially adopted its own strict ‘net neutrality’ laws.
It was swiftly challenged by the US Justice Department, which quickly filed an injunction to stop the Californian law.
California has agreed not to enforce its own state net neutrality law until the appeals court’s decision.
A decision by the US Court of Appeals for the District of Columbia is expected by this summer.
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