In the early hours of a three-judge panel hearing this morning at the Federal Appeals Court, the FCC's net neutrality rules took some strong criticism from the bench. The Federal Appeals court expressed "deep concerns" that the agency's "net neutrality" rules approved in late 2010 are completely legal. Verizon argued before the panel this morning for two hours, saying that the rules were not legal because they were not implemented by lawmakers and that the FCC does not have the authority to enforce them.
The three judge panel in Washington agreed to some degree, saying that it had significant problems with the FCC's legal justifications for a main portion of the rules. The judges zeroed in on the anti-discrimination provision that bars broadband providers from charging content companies for faster, more seamless access to consumers.
The judges said that such rules treated Internet providers as "common carriers" (lke phone companies) while treating Internet services differently. The rules did this while still wanting the ability to prevent broadband providers from discriminating against those content providers. The judges didn't seem to have a problem with the possibility of retaining the FCC rule that prevents Internet providers from blocking internet traffic outright for websites that refuse to pay for transmission of their content.
But by the end of the hearing it seemed that the real question was whether just some or all of the FCC's rules on net neutrality would be invalidated. Judge David Tatel aimed multiple questions at a government lawyer defending the rules today, and Judge Laurence Silberman said the FCC's arguments in defense of its rule were "dubious."
For now, we will have to wait and see how the Appeals Court rules. This could mean that the FCC's net neutrality rules are completely invalidated. If that's the case, the FCC will have to find a new way to proceed in order to enact new rules that can't run afoul of the courts.