LINDA WERTHEIMER, HOST:
The supporters of strong open Internet rules cheered when the Obama administration moved to regulate Internet access like a public utility - all traffic treated the same way. But the plan faces a big hurdle today. Major phone and cable companies are challenging the new rules in court this morning. NPR's Joel Rose reports on what's at stake.
JOEL ROSE, BYLINE: The FCC has tried to enforce similar rules twice before. Both times, the agency's lawyers wound up in front of the same D.C. Circuit Court they're facing today. Marvin Ammori remembers the first case five years ago.
MARVIN AMMORI: That was one of the worst days of my life (laughter) when I walked out of that courtroom.
ROSE: At the time, Ammori was a lawyer for Free Press, a nonprofit group that supported the FCC's plan. Ammori and a lawyer for the commission argued the case in favor of rules to protect what was known back then as net neutrality. That's the idea that phone and cable companies should treat all of the traffic on their networks equally - no blocking or slowing the competitors, and no fast lanes for companies that can pay more. Ammori says everyone in the courtroom knew as soon as oral arguments ended that his side was going to lose.
AMMORI: Everyone was just offering condolences and offering to buy me a drink. But let's be honest. The FCC was asked as their last question right before I stood up, how do you want to lose? Do you want to lose on procedure or on jurisdiction?
ROSE: In that case, and the one that followed three years later, the court found the Commission had failed to show that it had the legal authority to impose its rules on the industry. This time around, Ammori is representing the web company Tumblr, which is also supporting the FCC's plan. And he says this time feels different.
AMMORI: The FCC did a complete 180 on their previous legal theories. And they actually paid attention to what the court told them to do.
ROSE: Here's what he means. Earlier this year, the FCC moved to reclassify the Internet as an essential communication service, much like landline telephone service in the last century. The Commission wants to regulate Internet access under Title II of the Communications Act of 1934. That's a possibility that previous court rulings mentioned too. But the the big phone and cable companies hate Title II. Here's Randall Stephenson, the CEO of AT&T, speaking on CNBC in May, shortly after his company announced it was joining other industry groups in suing to block the FCC's rules.
RANDALL STEPHENSON: Title II was not, probably, the best way to regulate this industry. This is an industry that is changing really, really fast. It's attracting a lot of investment.
ROSE: The challengers argue the FCC's Open Internet rules thwart that investment.
BARON SZOKA: If you want more investment competition, Title II would be a disaster.
ROSE: Baron Szoka is president of Tech Freedom, a nonprofit that filed briefs in this case on the side of phone and cable companies. He thinks the FCC is going to lose again, despite its new reliance on Title II of the Communications Act.
SZOKA: They simply have not made the legal case they would need to justify their sweeping reinterpretations of the Act. And I don't think they can.
ROSE: Szoka would rather see Congress step in, but supporters of the FCC, including Marvin Ammori, argue that these rules are all that's preventing phone and cable companies from dividing the Internet into fast lanes for companies like Google and Amazon that can afford them and slow lanes for everyone else.
AMMORI: This decision will determine if the Internet that all of us use on our cell phones and at home - if it will remain the open Internet or if it will become a completely different service.
ROSE: The court's ruling isn't expected for months. But if the past is any guide, we may have a pretty good sense by the end of the day today. Joel Rose, NPR News.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.