Net neutrality has its day in court

Net neutrality is facing two challenges right now. One is in Congress, where it has been on and off and back on the chopping block for Republicans as they figure out just which and how many poison pill policy riders they'll threaten a government shutdown over. The other challenge is in the courts. On Friday, a three-judge panel on the United States Court of Appeals of the District of Columbia Circuit heard a challenge of the Federal Communications Commission's open internet rule filed by telecom, cable, and wireless trade groups. By most accounts, it was encouraging to net neutrality supporters, particularly because of the line of questioning from Judge David S. Tatel.

On Friday, Judge Tatel pointed several times to case history that supports the F.C.C.'s move to regulate broadband services like utilities. He said an opinion by the Supreme Court in 2005 gave the F.C.C. the ability to categorize communications services as it sees fit. Judge Tatel also repeatedly went back to that high court decision in questions to cable and telecom companies suing the agency for overreach.

"Isn't that our starting point?" Judge Tatel said just minutes into a long morning of oral arguments. His comments were particularly scrutinized because twice before, in 2010 and 2014, he wrote opinions to vacate previous net neutrality rules.

The core issue is whether the FCC has been granted the power by Congress to reclassify broadband as a telecommunications service. In fact, the FCC and advocates for the rule were prepared for Tatel, even in the writing of the regulations. Tatel's previous decision for Verizon overturning the FCC's previous regulatory scheme guided their actions in developing the new open internet rules.