Mozilla et al v. Federal Communications Commission, a case with major ramifications for the future of net neutrality, went before a three-judge panel of the US Court of Appeals on Friday, February 1. The widely viewed hearing offered judges a chance to consider oral arguments from representatives from tech companies including Mozilla and Vimeo as well as nearly two dozen states, government lawyers, and legal counsel for ISPs such as Verizon, Comcast, and AT&T.
Petitioners challenged the FCC’s 2017 repeal of net neutrality regulations, maintaining that internet access should be protected by the Communications Act of 1934 and that the FCC has neglected to assess issues like “public safety, market concentration, and how antitrust and consumer protection laws would function in the absence of regulation by the Commission.” In turn, the FCC argued that their regulatory dismantling is justified due to past court precedent and because the internet differs from telecommunication services in both nature and intention, and therefore should not be subject to the same level of regulation as phone services.
Though the arguments stretched on for nearly five hours, little seems to have been decided. However, one point of particular interest during oral arguments was the issue of paid prioritization, also known as “fast lanes,” a practice which would allow ISPs to give preferential treatment to selected kinds of web traffic. In one of the more intriguing moments of the hearing, Judge Patricia Millett, an Obama appointee, grilled FCC general counsel Thomas Johnson after he suggested that paid prioritization was entirely hypothetical. Johnson stated, “Paid prioritization is a theoretical construct. . . To my knowledge, there is on the public internet no such arrangement. And so, all of the speculative concern we have heard about winding dirt roads and fast lanes and slow lanes is entirely speculative.” Judge Millet fired back, interjecting: “Did ISP providers. . . submit comments saying that they wanted to be able to do paid prioritization as part of this rule? They want that option.” Johnson faltered, then responded by pointing to the “pro-consumer uses of paid prioritization,” a line of reasoning that seemed counterintuitive to his earlier statements. You can listen to the exchange yourself by clicking below:
The court is expected to rule sometime this summer. Judges have several options on the table, including approving the repeal, terminating it, or ordering the FCC to make specific modifications to the policy before it can move forward.