• by Wendy Davis  @wendyndavis, September 9, 2013

The Federal Communications Commission faced some tough questions on Monday from appellate judges who are considering whether the agency's net neutrality rules are valid.

The rules, passed in late 2010, prohibit broadband providers from blocking content and competing apps. The regulations also ban wireline providers -- but not wireless companies -- from unreasonably discriminating against content and app providers.

Verizon challenged the rules in the D.C. Circuit Court of Appeals, arguing that the FCC lacks authority over broadband.

At least two of the three judges on Monday's appellate panel indicated they agreed at least partially with Verizon. Specifically, the judges indicated that the anti-discrimination rules unlawfully imposed common carrier requirements on broadband providers. The FCC classifies broadband as an “information” service, not a telecommunications service. But the agency is only empowered to treat telecommunications providers as common carriers.

“There was definitely some skpeticism about the types of rules they adopted,” says Free Press policy counsel Jennifer Yeh. But she adds that the appellate panel appeared to recognize that the FCC has the authority to promote broadband deployment, but not to impose common carrier type rules.

Free Press and other Net neutrality advocates have urged the FCC to reclassify broadband as a telecommunications service. “Our position has always been that the FCC is on shaky ground because they chose this route of classifying broadband services as information services,” Yeh says.

Much of Monday's argument focused on the difference between the FCC's rules prohibiting “blocking” and the ones banning “discrimination,” with some judges indicating that they might uphold the anti-blocking rules, but vacate the anti-discrimination rules. Broadly speaking, anti-discrimination rules appear to prohibit broadband providers from charging more for fast-lane service, while anti-blocking rules seem to ban providers from refusing to put traffic through at all.

Judge David Tatel said at one point during the two-hour hearing that the anti-discrimination provision appeared to be the kind of rule that can only be imposed on common carriers. Tatel previously was on a panel that vacated the FCC's decision to sanction Comcast for violating the 2005 net neutrality principles -- which preceded the agency's rules. Tatel and the other judges said at the time that the FCC lacked authority to enforce neutrality principles.

Judge Laurence Silberman specifically wanted to know why the FCC thought the rules were necessary. The FCC's lawyer, Sean Lev, gave two reasons. One was to preempt the threat of blocking. The other was to provide certainty. “The threat of what Verizon and other parties could do was in fact a barrier to infrastructure investment,” Lev said.