Will Supreme Court settle network neutrality issue?

Critics of FCC's controversial open internet order file appeal for lower court to rehear the case, but see the Supreme Court as perhaps the best hope of reining in new online regulation.

Net neutrality foes work to get the U.S. Supreme Court to weigh in and settle the matter of network neutrality, perhaps the most contentious issue in technology policy over the last decade.

[ Related: U.S. appeals court upholds net neutrality rules, but fight is not over ]

It is certainly possible, because opponents of the policy advanced by the Federal Communications Commission aren't conceding the fight after their recent legal setback.

Last week, U.S. Telecom, CTIA and other trade organizations and allied groups appealed to a federal appeals court to rehear the case in a proceeding that would involve all active judges, not just the three-judge panel that upheld the FCC's open Internet order in June by a 2-1 split.

If that court either refuses the so-called <em>en banc</em> hearing request, or if it grants it but still sides with the government, net neutrality opponents will next ask the high court to weigh in on the case.

That strategy might be a long shot, but to groups like TechFreedom, a free-market think tank that is fighting to overturn the rules, the FCC's action -- and the legal rationale underpinning it -- stands as a dangerous precedent that invites unchecked expansion of the federal government's regulatory authority.

[ Related: FCC votes for strict new broadband privacy rules ]

"This issue for me is not about net neutrality. That's always been a red herring," TechFreedom President Berin Szóka said this week at an event on the future of the FCC's order at George Washington University. "[T]his case is really about the FCC's claim of sweeping power to regulate the Internet as the basis for those so-called net neutrality rules."

Net neutrality, as the FCC formulated it in the 2015 open internet order, bars broadband providers from blocking or slowing selective traffic on their networks, and prohibits so-called fast lanes -- prioritization arrangements by which web companies could pay extra fees for speedy delivery of their content.

[ Related: 4 things CIOs need to know about the FCC broadband and innovation ]

Critics like Szóka are dismissive of the actual threat to the open flow of information that those scenarios suggest, asserting: "There really isn't anybody who wants to block content online. We're not really in danger of having our communications throttled."

Net neutrality foes seek help from Supreme Court

Net neutrality supporters forcefully counter that the big ISPs, which have been central to the legal challenges to the FCC's various open Internet actions over the years, would very much like to open a new revenue channel through paid prioritization agreements. That prospect threatens to turn the Internet into a pay-to-play environment that could freeze out emerging startups that couldn't afford to pay the tolls to deliver their content via the fast lanes.

What's more, the judiciary has spoken, and hopes for a reversal at the hands of the full D.C. Circuit Court of Appeals or the Supreme Court are "narrow and extraordinary," according to Sarah Morris, senior counsel and director of open Internet policy at the Open Technology Institute, a division of the New America Foundation that is supportive of the FCC's action.

"We are at a point of well-settled law," Morris says. "We are in a period of time when the court has made its peace."

Opinions differ on how likely the circuit court is to revisit the case or if the Supremes will eventually take it up.

Noting the partisan makeup of the lower court, Szóka sees a more favorable path for net neutrality opponents at the high court, which he believes could accept the case because of its broader implications for the administrative authority of the federal government, rather than the comparatively narrow issue of Internet regulation.

"The real issue," he says "is really about how much deference do courts give administrative agencies."

Gus Hurwitz, an assistant professor at the University of Nebraska who opposes the rule, notes the slim chances that any case faces when a party appeals to the high court.

"The simple answer is always low. It's always a crapshoot to try to get something before the Supreme Court," Hurwitz says.

"That said," he adds, "there's a lot of talk that the court is interested in clarifying some of these issues, so I think there's a much better chance than ordinary that this case will be of interest to the justices."

Morris doesn't buy it. Speaking for many net neutrality advocates, she sees the lower court's ruling, which broadly upheld the FCC's various arguments supporting the rule, as more or less the final word on the issue, at least in the judiciary.

"The reality is that we are most likely at the end of the litigation pathway here," Morris says. "[T]hese rules -- for better or for worse, whether you like them or you don't -- will remain the law of the land."

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Kenneth Corbin

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