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FCC didn’t have the right to repeal net neutrality, court case argues

This week a major court case in support of net neutrality began, with a group of consumer advocates and internet trade organizations challenging the Federal Communications Commission (FCC)’s overturning of the Open Internet Order (OIO). This order, passed in 2015, is what made it illegal for internet providers to block or throttle internet speeds when accessing particular sites or platforms — i.e. it is the law that protected consumers for having to pay more for “fast lane” services, and that protected companies from having to pay extra cash to internet providers for good speeds to be available on their websites.

Since the OIO was repealed in 2017, consumers and industry insiders have been concerned that internet service providers could start to limit access to certain sites — for example, AT&T could block its customers from accessing Netflix because it wants to promote its rival streaming service, DirectTV Now. This hasn’t happened yet, but companies are starting to test the waters with AT&T offering a “sponsored data” program for prepay wireless customers and AT&T CEO Randall Stephenson trying to discourage states from passing their own net neutrality laws.

The case is being heard by the U.S. Court of Appeals for the District of Columbia, and it centers around whether the FCC had the right to overturn the OIO. When the OIO was passed in 2015 it was upheld by the court, and critics point out that nothing has changed since that law was put in place except the people who run the FCC. The FCC therefore may not be justified in changing the law.

“Nothing has changed since the 2015 rulemaking but the leadership of the FCC,” Lisa Hayes, general counsel for the Center of Democracy & Technology, told Gizmodo. “The FCC lacks compelling evidence justifying its 2018 order, and I expect the DC Circuit will find that the FCC’s actions were arbitrary and capricious.”

The case is being brought by a diverse group including technology companies like Mozilla and open internet advocacy groups like the Open Technology Institute and the Center for Democracy & Technology. “Today we fought for an open and free internet that puts consumers first,” Mozilla Chief Operating Officer Denelle Dixon said in a statement, according to Gizmodo. “Mozilla took on this challenge because we believe the FCC needs to follow the rules like everyone else… The fight to save net neutrality is on the right side of history. Consumers deserve an open internet. And we look forward to the decision from the Court.”

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