Much of the legal argument over this aspect is whether the FCC has the authority to do what it did because, in its fervor to remove regulations, it undermined its own position. The FCC basically decided not only to scrap the net neutrality rules but to wash its hands of having to regulate the topic at all.
To make that stick, it imposed a rule that ISPs would have to tell consumers what they were doing to their content to provide adequate transparency. Then, if the company did something different, consumers could go to sister organization the FTC and complain.
But to impose the transparency rule, the FCC has to have some kind of assumed authority over ISPs, even while it was disclaiming that very authority. And so it relied on the fact that Congress asks the FCC to send it a report on how broadband rollout is progressing to argue that it had the right to insist on ISP transparency.
That was already a tenuous argument but it was made worse when the part of the law that requests the report was then subsequently scrapped in a different law as part of an ongoing anti-regulation push.
That's the most policy wonkish issue being debated. But others are key and far-reaching. Did the FCC probably consider public safety when it made the decision to basically turn internet provision into a free-for-all?
The FCC argued in court today that that public safety communications are carried over their own networks and so don't enter in this argument. But the court was notably less persuaded, especially given the fact that in 2019 public use of the internet is a critical component of public safety.
Again, the reality of what the internet actually is and does in our lives has butted up against the pigeonhole that it needs to fitted into to protect the rules from a legal challenge.
States vs federal
Then there is an entirely different line of argument that sticks its hand directly onto America's legal third rail: state versus federal rights.
The FCC's decision to scrap net neutrality rules – and to do so in such a high-handed fashion which it actively and, in some cases obnoxiously, ignored others' concerns – infuriated states to such a degree that many of them have passed their own net neutrality rules and laws reimposing them. California is most notable.
What do Cali, New York, Hawaii, Maine and 18 other US states have in common? Fighting the FCC on net neutralityREAD MORE
The FCC argues that internet provision is an inter-state service and so its rules preempt anyone else's. But that argument ignores the reality of the internet as both a global and local resource. The internet flings information and content around a global network with no consideration at all to geography: location has to be artificially imposed onto the system.
At the same time, if you as a consumer want to buy access to this network, you have to buy it from a company that connects a physical piece of equipment to your home. You can't just decide one morning to pay an ISP on the other side of the country for internet access, they won't be able to do it. As such the issue is very local and so it obvious that the state also has a say in how things are done on its territory.
There are some other minor legal points but that morass of legal back-and-forth is what makes up this particular legal challenge and what took up several hours of discussion this morning.
So who was the winner and who was the loser?
Well, oral argument is a notoriously poor indicator of final decisions. The judges typically use their time to aggressively poke holes in both sides' arguments and then go away and take time to consider the issues in a broader context. What may seem like a damning exchange at the time can become little more than footnote in the final decision.
But that caveat aside, to our ears, the FCC got a rougher time of things and had fewer solid arguments to pushback against the judges' probing and assertions. If all things were fair, the FCC would be forced – yet again – to go back to the drawing board and develop a system that actually works for the internet. But that doesn't mean it will happen. ®