The net neutrality fight may have died down for a while, but only because the industry has been holding its collective breath waiting for the courts to have their say. Today that process gets underway at the U.S. Appeals Court for the D.C. Circuit.
As a reminder, the Federal Communications Commission (FCC) passed (3-2, along party lines) the Open Internet Order in February, newly classifying broadband service providers as common carriers under Title II of the Communications Act. Despite efforts to stay the ruling, the order then went into effect in June, and was followed by multiple lawsuits that are likely, eventually, to push the issue before the Supreme Court. (See FCC Vote Shows Net Neutrality Strains and Title II Rules Take Effect.)
On the one side, proponents of net neutrality argue that broadband service must be fairly and equally available to all. On the other hand, opponents -- including broadband service providers -- say further regulation will slow innovation and even create a disincentive to invest further in broadband infrastructure.
Ironically, service providers are mostly not disputing the core principles of net neutrality. At least in public they applaud the idea of not blocking or throttling Internet traffic, and they agree that paid prioritization of traffic is a bad idea. However, ISPs are very concerned about the idea that the government could exercise pricing control now that broadband providers have been classified under the same category as utility service providers. The FCC has explicitly stated that it will not apply rate controls, but ISPs aren't convinced.
Financial analyst Craig Moffett also expressed his lack of faith recently saying, "I believe Title II, by the way, is very much a price regulatory mechanism."
He added that, "The fact that the FCC left open Section 201(b) [of Title II], which is just and reasonable pricing, and left open Section 208, which is inviting complaints about anything -- including, by the way, whether prices are just and reasonable -- essentially mandates that the FCC will hear rate cases about broadband pricing, notwithstanding what the [FCC] Chairman has said."
However, FCC Special Counsel for External Affairs Gigi Sohn has argued strenuously that pricing control isn't on the table. Sohn told cable operators at an event back in March that the FCC is forbearing from "every single administrative mechanism that would make rate regulations possible." She also pointed out that trying to impose rate controls would be massively politically unfeasible both now and in the future. (See ACA Doesn't Buy FCC's Rate Reg Reassurances.)
Despite the net neutrality hearing today, any final decision on the Open Internet Order isn't likely to come for many months. Once the Appeals Court makes its ruling, it's likely the case will be handed to the Supreme Court with a request to review.
— Mari Silbey, Senior Editor, Cable/Video, Light Reading