Net neutrality could be saved by a technicality
6:17

Net neutrality could be saved by a technicality

Tech Industry
Net neutrality has another chance to be resurrected from the dead. It's latest fight to survive is now in the courtroom. Net neutrality can be a messy topic but here to help us digest what matter in this latest chapter of the saga is CNET's senior writer Maggie Reardon. Thanks for joining us. I'm glad to be here. All right so right now in the court, there's two different sides going on. On one side you have Zilla a bunch of Internet companies, State Attorney Generals trying to fight to keep net neutrality going. Yes. So basically, they are fighting against the FCC's repeal of the rules which they did back in 2017. So they're saying They have a bunch of arguments, but one of the arguments is that the FCC really didn't have any right to repeal these rules. And then the attorney's generals are actually picking apart the aspect of the repeal that says that That the FCC preempts any states from passing their own rules. This is the DC circuit of the court of appeals. So basically this is like the appellate system is right under the U.S. Supreme Court so. And there were three judges today who heard, Nearly five hours of arguments. This is unusual for oral arguments, even like in an appealate court. Like they don't usually go on for five hours. So I think everybody was kind of like god, I've got to go to the bathroom, I've got to eat something. I mean even the justices were kind of like, this is long let's like speed this up and get through this. But it's a very dense topic. And there was a lot to cover. And there were a lot of arguments to go through. Is this the kind of situation where there was like a clear winner? Or what are you hearing? Well I guess sort of the biggest take away is, Yet more uncertainty. Like we really don't know how this is gonna come down. And that's true of most appeals court decisions, because really the oral arguments are just one aspect of this whole case. And you know, what did justices sort of focus on. It's a little bit telling but it doesn't tell the whole story. There are some other procedural challenges that were made as part of this, right. And so those might be the arguments that end up kinda winning the day and so neutrality conserved be saved And a technicality. [LAUGH] And we can kind of go into some of those. Yeah. So, one of the issues was this issue of public safety. So, part of the complaint was that during some of these crazy wild fires that were happening in Californa. Santa Clara fire fighters, their. Service was throttled by Verizon. Now, they admit that that by itself isn't really a net neutrality violation, right? They had a service contract with Verizon. Verizon could, just like they can for me. I have unlimited service. If I use too much, they can throttle me back, right? That's not a net neutrality issue per se. But what they were saying is but now the FCC has basically as part of its repeal of net neutrality like they've advocated Authority for everything because they went hands-off approach. They're like not my job. It's the Federal Trade commission's job. So Federal Trade Commission you deal with it. But what the public safety community is saying is, well, but what about us? You didn't even consider our concerns that maybe there should be some sort Sort of exception for public safety, and there were a lot of comments on the record and that was something that Judge Mallet really sort of hammered in on, and was asking the FCC like, I mean like, did you consider this, I mean, and they didn't really have a very good answer for that so, that could be an area where the court says like Well, at least you would've considered it. Show us your work here. So because it did it, that could've been a technicality perhaps. That could've been a technicality, right. And then the other big area is, so the FCC repealed most of the net neutrality rules. The one thing they kept is this notion of the transparency rule. Right, that's the idea that you gotta spell it out. Right, you've just gotta tell me, right? You've gotta tell the consumer if you're gonna favor Hulu over Netflix. The FCC has to cite what authority it has to do anything, right? So they cite this part of the act, this sort of little minor part that Actually, Congress changed. So the FCC adopted its rule in 2017, they cited the section of the act as their authority for the transparency rule in December. Then in the spring, Congress updated the act. They actually took out a little subsection And rewrote the language and then the rules actually officially came off the books in June so. So they were basing this off a rule that now no longer is there. Exactly right. Now the FCC argues but it still gives us authority and but what Judge Malet seemed to really hone in on is but you didn't stop and like. Give the public a chance to comment whether or not they thought that this like changed your analysis here. And that's something, that's a procedural thing, like the FCC, you know, there was something that was significant to change from the time they adopted the rule until it went into effect, Congress made a change to the wall that they were basing it on. And they didn't stop to consider whether or not they still had the authority. And that could be the technicality that kind of makes the whole thing crumble. So where do we sit know after five hours of these arguments? Now we sit and wait. Okay. [LAUGH] We wait for four to six months. [LAUGH] Thanks, Maggie, and thanks for watching. That's it for now.

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