Net Neutrality Goes Back On Trial

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Above Photo: Judge David Tatel Associated Press.

Net neutrality is going back on trial this week when one of the most powerful courts in America considers whether the Federal Communications Commission can go forward with its plan to impose utility-like regulations on broadband providers.

The FCC earlier this year came out with a new set of Internet regulations, the agency’s latest attempt to advance “open Internet” rules that essentially require equal treatment of Internet traffic. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on Dec. 4 is hearing the telecom industry’s challenge to the rules.

Sitting on the panel is Judge David S. Tatel, who has emerged as a “Justice Kennedy” of net neutrality. Whether the FCC’s new regulations pass muster could come down to what Judge Tatel thinks, reports WSJ‘s John McKinnon.

“Given his interest and his knowledge, it is overwhelmingly likely that he will be in the majority and write the opinion,” said Georgetown law professor Andrew Schwartzman.

The 73-year-old judge, known for his expertise in the technology arena, torpedoed two previous versions of the net-neutrality rule. But his presence on the panel isn’t necessarily bad for the FCC.

Explaining where it gets the authority to impose “net neutrality” rules — a policy favored by the Obama administration — has always been the agency’s biggest challenge.

In previous attempts, it relied on a minor provision of Congress’s 1996 overhaul of the Communications Act of 1934 that instructed the FCC to encourage investment and competition in the advanced telecommunications market.

In February a divided FCC changed tactics, reclassifying broadband providers as telecommunications services through Title II of the Communications Act of 1934, which originally subjected the phone system to the same kind of public-protection rules that govern railroads or pipelines.

In his last ruling, Judge Tatel suggested the FCC could find better legal footing through Title II. “In the previous case, he provided a legal road map for the FCC to follow,” Marvin Ammori, a lawyer and net neutrality activist, told WSJ.

Big phone and cable companies—along with congressional Republicans—say the FCC still lacks a legal basis to impose the net neutrality rule.

The case isn’t a typical appeal.  There was no trial-court ruling. Challenges to federal agency regulations can often go straight to the D.C. Circuit.