“Does the US government have any role in ensuring ubiquitous, open, world-class, interconnected, reasonably-priced Internet access?” For Susan Crawford, co-director of the Berkman Center for Internet & Society at Harvard and a professor at Yeshiva University’s Cardozo School of Law, the question is rhetorical. Obviously, yes. It remains to be seen whether the D.C. Circuit will agree.

On Monday, September 9, 2013, the D.C. Circuit heard oral argument in Verizon v. FCC. Verizon’s 116-page brief includes 53 pages of legal argument, taking aim at the FCC’s Order Preserving the Free and Open Internet. The FCC’s Open Internet Order focuses on three tenets: Transparency, No Blocking, and No Unreasonable Discrimination. These rules embody net neutrality principles—requiring that ISPs maintain open, nondiscriminatory broadband pipelines, providing the all creators of legal content with an equal ability to reach consumers and end users. The overarching goal is to ensure an open, level playing field in terms of standards, access, and performance in order to encourage innovation.

However, Verizon claims that FCC’s Open Internet Order falls outside the scope of the FCC’s authority, unconstitutionally violates its First Amendment free speech rights and Fifth Amendment property rights, and is arbitrary and capricious. Verizon has invested billions of dollars in its network infrastructure and believes the company should have complete control over network management, access, and prioritization in order to maximize the return on its investment (i.e., charging particular content providers for faster service).

What is the future of net neutrality given this highly partisan debate?

Many commentators find Verizon’s constitutional arguments “silly” and “ridiculous,” arguing that, as a vendor of high speed Internet, Verizon’s role in allowing the transmission of others’ speech is separate from Verizon’s own speech and does not result in compelled speech. Rather, the main thrust of the net neutrality debate centers on the scope of the FCC’s authority to regulate Internet network access and the manner of the FCC’s rulemaking to that end.

The D.C. Circuit is no stranger the controversy; in 2010 the court ruled in favor of Comcast, against the FCC’s net neutrality rulemaking and its attempt to regulate Comcast’s network management. However, the court did not hold that the FCC had no role in establishing rules to promote an open Internet; it only took issue with the method the FCC had used. Will the FCC’s revised rulemaking approach pass muster?

Furthermore, in terms of arbitrary and capricious rulemaking, will the threat of ISPs blocking and degrading service be considered a real concern? Verizon argues that the FCC has only four documented examples of alleged blocking of content by ISPs in the span of six years, during which “end users successfully accessed the Internet content, applications and services of their choice literally billions of times.”

The lawyers will battle it out over policymaking principles and legal precedent, but the question boils down quite simply: who should make the rules that govern access to the broadband pipes?

–Lizzie Maratea

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