At our most recent tech policy conference, Seth Cooper from Free State Foundation shared his analysis on the most recent battle in the ongoing war over net neutrality. And today we’re sharing some more information (and more reading material!) for those of you who missed it, as well as those who want to dig deeper into this important issue.

On February 1, the DC circuit court heard oral arguments in Mozilla v FCC. Mozilla, along with a number of other companies and organizations, is legally challenging the Federal Communications Commission’s (FCC) Restoring Internet Freedom Order. A number of key issues are wrapped up within this argument, and our friends at Free Sate Foundation have outlined most of them for us.

The first issue is the very definition of the internet. Is it an information service? Or is it a telecommunications service? It matters because the Communications Act outlines very different regulatory frameworks for those two things. Title I of the act outlines a light regulatory touch for information services, while Title II gives the government far more control over telecommunications services. In this article originally published on The Hill in December 2017, Seth Cooper explains why the Restoring Internet Freedom Order was right to stop claiming the internet is a Title II utility, returning it to the lighter touch regulations of Title I.

Another concern centers around states authority as opposed to federal authority. Many states have created their own “net neutrality” laws which were preempted by the Restoring Internet Freedom Order. If the order, along with its preemption clause, is upheld in court, the state laws will be overruled. Daniel Lyons, a Free State Foundation scholar discusses this issue here.

The heart, however, of any net neutrality discussion is the question of paid prioritization and how it might affect the public good. Once again, Free State Foundation scholars address this question with Theodore Bolema’s blog from August 2017 and Seth Cooper’s blog from August 2018.

We will have to wait a few months for the D.C. Circuit Court’s decision in Mozilla v FCC. They’ve taken anywhere from three to six months to decide other recent FCC-related cases. In the meantime, we highly recommend Seth Cooper and Randolph May’s book “A Reader on Net Neutrality and Restoring Internet Freedom” which is available on Amazon.