Eight Questions About Friday’s Net Neutrality Hearing

The Federal Communications Commission will head to court on Friday to defend its net neutrality rules against opponents who want to overturn the broadband regulations, a hearing that may help determine how consumers get access to content on the web.

If this sounds familiar, it’s because the F.C.C. has twice appeared in front of the same federal court to argue over net neutrality policies, in particular a set of regulations aimed at preventing favoritism on the Internet. In both cases, the F.C.C. argued that it had the authority to regulate high-speed Internet providers, while opponents argued the agency was overstepping the mandates of Congress. Both times, the agency lost.

Hoping that the third time will be the charm, the F.C.C.’s lawyers will tell a panel of judges at the United States Court of Appeals for the District of Columbia Circuit that its most recent version of net neutrality rules is on firmer legal ground. With all the twists and turns of the F.C.C.’s yearslong net neutrality push, we offer this guide on the latest developments and what they may mean for you.


I still don’t get what “net neutrality” means. Explain.


It’s a lousy name for the idea that traffic for all legal content on the Internet should be treated equally. In practice, that principle has taken shape in F.C.C. regulations that bar Internet service providers from blocking certain websites or making them download slower or faster than others.

An example of a net neutrality violation would be if Comcast decided to intentionally make streams of Netflix videos buffer while allowing its own streaming service to play seamlessly to its millions of home broadband customers. Another would be if AT&T blocked Facebook Messenger for its wireless customers.


The current F.C.C. rules on net neutrality were approved in February. How do they differ from past versions?


The rules ban blocking and throttling of Internet content. They also prohibit “paid prioritization,” the practice by web companies of paying Internet service providers for priority delivery of their sites to consumers. The biggest difference in this set of rules is that the F.C.C. categorized broadband as a utility along with telephone services under a statute known as Title II.

Under this new categorization, the F.C.C. can attach many of its telephone rules to broadband. Telecom and cable companies say the new categorization of broadband as a utility will strap too many arcane utility phone rules onto the newer and thriving high-speed Internet industry. They are now fighting to have the rules invalidated.


What makes the F.C.C. think it can win this time?


This time the F.C.C. has declared itself the unequivocal regulator of broadband services by classifying broadband as a Title II service. By putting broadband into the same bucket as telephone services, which it undoubtedly regulates, the agency has a solid legal basis to create new regulations for Internet service providers. When the court vacated the F.C.C.’s last set of net neutrality rules in 2014, broadband services were in a different category of which the F.C.C. had weaker, arms-length, or “ancillary,” authority to regulate.


Does the Title II classification slap many more rules onto Internet service providers?


The F.C.C. will regulate more aspects of broadband. It is already proposing new privacy rules for broadband providers based on the Title II classification. But the biggest fear — that the agency will begin to regulate rates for broadband service — is not on the table. The F.C.C. doesn’t want to set prices for high-speed Internet service and promised to withdraw from, or “forbear” on, that ability.


For all the hypothesizing of net neutrality violations, are there any examples of those problems today?


Arguably, there were examples in the past: In 2009, consumer groups complained that AT&T appeared to block Skype. In 2008, the F.C.C. found that Comcast blocked peer-to-peer file-sharing between users.

In recent weeks, new promotions by T-Mobile and Comcast have rung the alarm bells of net neutrality supporters. T-Mobile’s BingeOn promotion allows unlimited streaming of certain video services. Comcast is also offering its own video streaming service free of data charges. The practice known as “zero rating,” in which customers are offered services without data charges, is an area the F.C.C.’s chairman, Tom Wheeler, intentionally left open for interpretation. Both plans have drawn criticism for potentially harming competition. Mr. Wheeler wants companies to experiment with new business models; the F.C.C. will judge, case by case, whether the plans violate net neutrality rules.


Does the F.C.C. think T-Mobile and Comcast violated net neutrality rules?


It’s unclear. In a recent news conference Mr. Wheeler called T-Mobile’s service “highly innovative and highly competitive” but then said, moments later, he would “continue to watch” the effects of the service on consumers and competition. That mixed message has frustrated some officials in the agency and could hurt the chairman in its legal defense on Friday.

“He keeps saying, ‘We will be the referee,’ but I keep saying, what’s the game we’re playing?” Michael O’Rielly, a Republican commissioner of the F.C.C., said in a recent interview. Plaintiffs in the appeals court case will argue that such a vague standard shows the rules are written too broadly and are bad for business.


What should we watch on Friday?


Three judges will hear the case. The judge to watch is David S. Tatel, who wrote the decisions in 2010 and 2014 when the court struck down previous attempts by the F.C.C. to uphold net neutrality. Observers will parse his words and try to read body language for any clues on his thinking about the new rules.


What next? And is the future of the Internet really at stake here?


After oral arguments, the judges will deliberate for several weeks and will most likely come up with a final opinion in the spring. If its rules are overturned, the F.C.C. will probably make another attempt at rewriting them. The Obama administration is highly supportive of net neutrality and the current Democratic majority at the F.C.C., an independent agency, has pledged to fight for the rules. But it may be that the next administration will determine what happens, and thinking on net neutrality falls along party lines. Democratic presidential candidates have supported net neutrality and several Republican candidates have said the regulations overreach.

Will there be an Internet apocalypse without rules? Even in periods when the regulations were in flux, the market has tended to behave. With popular support for the rules — from huge online petitions and even from late-night television hosts — and a continued drumbeat on the debate, there have been few signs of unfairness on the web. But expect to see more zero rating and other promotions by companies like T-Mobile and Comcast to test the boundaries.


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