The battle over net neutrality is far from over.
Although the Federal Communications Commission last year officially nixed its rules governing the conduct of internet providers such as Comcast, Verizon, and AT&T, the move kicked off a backlash by states, internet activists, and other supporters of the Obama-era regulations whose effects will play out in 2019. Here’s what to expect as the fight over the future of the internet enters its next act.
Supporters of the net neutrality rules — which were intended to prevent internet providers from blocking, slowing, or selectively speeding up apps and services — have taken the FCC to court in an effort to overturn its repeal decision. That case goes to oral argument in early February.
On Wednesday, the U.S. Court of Appeals for the D.C. Circuit revealed the names of the three judges who will be deciding the case: Judith Rogers, Patricia Millett, and Stephen Williams.
Of the three, Williams is a familiar face. Appointed to the court by President Ronald Reagan, Williams served on the three-judge panel that heard the previous case on net neutrality, and he was the lone partial dissenter in the 2016 decision that upheld the regulations in the face of a challenge by broadband companies.
The two other judges on the list are Democratic appointees: Rogers was nominated by President Bill Clinton and Millett by President Barack Obama. Millett has argued forcefully for reproductive rights and has been called a “worthy successor of Ruth Bader Ginsburg,” according to Slate.
Rogers is considered a politically moderate judge who is meticulous in her knowledge of the way federal agencies properly make decisions — which will be the key issue facing the court when groups such as Mozilla face off against the FCC on Feb. 1.
Rogers' understated style and mild manner aren't likely to give away to the courtroom which arguments she finds more compelling. But persuading her is likely the key to victory, said Andrew Schwartzman, a lecturer in law at Georgetown University.
"Judge Rogers is the vote that the FCC needs to win," said Schwartzman, who quickly added that few things are ever certain when it comes to speculating about court decisions.
The D.C. Circuit's decision is expected to set the tone for other court fights over net neutrality, in particular the Trump administration's legal efforts to block California from enforcing its own net neutrality legislation.
The state law, which is regarded as the strongest in the nation because it prohibits even some ISP activities that the FCC's original rules didn't, was passed last year. But moments after it was signed by Gov. Jerry Brown, the Justice Department said it would sue the state.
A month later, the two sides agreed to a truce: The legislation still took effect on Jan. 1, but California isn't enforcing the law; the Justice Department is suspending its litigation until the D.C. Circuit case is resolved.
That resolution, however, could take more time than anticipated: The partial government shutdown is expected to close the FCC's doors Thursday, forcing the agency to send home all but its most critical support personnel. Meanwhile, the federal court system has enough money to operate through Jan. 11. While oral arguments at the D.C. Circuit will continue through January, according to the court's website, there is no word on whether the Feb. 1 oral argument on net neutrality will be postponed.
But if and when the D.C. Circuit hears the case and issues an opinion, expect the battle to continue over whether states can legally establish net neutrality laws independent of the FCC. That debate could significantly shape the power of state governments on a range of issues, not just net neutrality.
While many experts had hoped Congress would finish the net neutrality fight decisively with clear legislation that lays out how internet providers can and can't manipulate internet traffic, split partisan control of Capitol Hill isn't likely to lead to much compromise this year, analysts say.
"It's conceivable that Congress will settle net neutrality once and for all in the next 18 months, but I'm skeptical," said Paul Gallant, a telecom industry analyst at Cowen & Co.
And with some politicians already gearing up for 2020 presidential runs, what has become an intensely partisan issue among Democratic and Republican lawmakers could continue to divide them.