A court is about to make one of the most important decisions in the history of the Internet

By Brian Fung

Washington Post·

21 Apr, 2016 01:00 AM4 mins to read

Photo / Getty Images

If you thought the battle over net neutrality ended when the Federal Communications Commission slapped a series of unprecedented rules on Internet providers last year, think again.

For months, the tech and telecom industries have been waiting for a court decision on net neutrality. It's the result of a legal appeal filed last year by companies such as AT&T and trade groups like the National Cable and Telecommunications Association. The lawsuit could overturn some or all of the rules, and nobody is quite sure how it'll turn out.

Any day now, the court is expected to release its decision - and many in Washington are bracing for the result. Here's why it's so important, and what you need to know to get caught up.

'Net neutrality.' Remind me again?

It's been a while, so as a refresher: Net neutrality is the concept that all Internet traffic should be treated equally by your broadband provider. Under this idea, companies such as Verizon and Comcast shouldn't slow down or block websites or online content that they don't like, and they shouldn't allow some to go faster just because they've paid a fee. Net neutrality advocates would consider this to be discriminatory behavior and say that it would completely change the nature of the Web. In light of that, the FCC moved to preempt that kind of activity with its rules last year.

And then the industry sued?

Yes, in hopes of getting those rules overturned. This is actually not the first time that net neutrality has been taken up in court: Today's rules are a direct result of the FCC having to redraft its regulations after Verizon successfully persuaded a court in 2014 to toss out many of the old rules on the books.

So how is the court likely to rule now?

Anything could happen. But court-watchers on both sides say that the U.S. Court of Appeals for the District of Columbia Circuit will uphold the most important piece of the FCC's new regulations: reclassification.

Reclassification?

In order to legally impose a ban on the blocking and slowing of Internet traffic, the FCC needed to "reclassify" Internet providers under a different category of the law. By defining them differently, the FCC gained additional authority over broadband companies, allowing the agency to regulate them as it does with legacy telephone companies.

Internet providers in the lawsuit said the agency didn't have the right to do what it did, and they worry that it gives the FCC too much power to impose new privacy requirements, levy fees or even directly set prices for service. That's one reason for the lawsuit.

So the court could uphold the reclassification decision?

That's what many in Washington are expecting it to do, anyway. But, they add, the three judges may rule differently when it comes to the FCC's rules for wireless carriers such as Sprint and T-Mobile. Industry officials have argued that even if the FCC can legally reclassify providers of wired, fixed broadband, the law still doesn't allow the FCC to sweep wireless carriers under the same umbrella.

The FCC has said that it is confident the rules will survive judicial scrutiny.

Could this go to the Supreme Court?

Maybe. Some legal scholars think it won't get that far. The ruling could spur Congress to finally write legislation addressing net neutrality that would resolve the impasse once and for all. Or, the Supreme Court may receive a petition but not act on it, as it generally tends to intervene when A) there's a clear question of constitutional interpretation involved or B) there are two competing rulings from different courts on the same issue.

An appeal to the Supreme Court also carries a bit of risk for whoever is escalating the case. Here's why. With Justice Antonin Scalia's seat still empty, a 4-4 tie vote at the Supreme Court automatically allows the lower court's ruling to stand. Suppose you're an Internet provider and you "lose" at the D.C. Circuit. If you appeal to the Supreme Court and there's a split decision, you've still lost.

Still, other analysts believe that a Supreme Court confrontation is inevitable, because somebody could file a lawsuit on net neutrality in another appellate court, potentially provoking a circuit split for the high court to solve. Or they could bide their time until there's a ninth justice on the bench, which could offer more clarity as to the path forward. And there is a First Amendment component to the lawsuit that essentially amounts to Supreme Court bait, but it's unclear how much traction it will have with the highest court in the land.