According to Ars Technica, FCC's General Counsel Thomas Johnson did his best to explain the policy of turning over the internet to corporate monopolies but faced a tough crowd of judges who were not having it.
His spin was that broadband shouldn't be considered a telecommunications service, and the FCC's failure to protect public safety agencies from Internet providers blocking or slowing down content was a good thing.
The case is being decided by a three-judge panel of the US Court of Appeals for the District of Columbia Circuit.
Of the three judges, Circuit Judge Patricia Millett was Johnson's nightmare and repeatedly challenged the FCC's definition of broadband and its disregard for arguments made by public safety agencies.
She questioned the FCC's claim that the net neutrality rules harmed broadband investment. Circuit Judge Robert Wilkins expressed some scepticism of FCC arguments, while Senior Circuit Judge Stephen Williams seemed more amenable to FCC arguments. Williams previously dissented in part from a 2016 ruling that upheld the Obama-era net neutrality rules.
The lawsuit is seeking to overturn the net neutrality repeal and was filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies such as Mozilla and Vimeo.
To deregulate broadband, the FCC argued that broadband isn't a telecommunications service and is instead an information service.
US law defines telecommunications as "the transmission, between or among points specified by the user, of information of the user's choosing, without a change in the form or content of the information as sent and received".
US law says an information service is "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilising, or making available information via telecommunications".
Millett pointed out the importance of the "via telecommunications" phrase in the information service definition, which makes it clear that an information service rides on top of a telecommunications network. For broadband itself to be an information service, ISPs have to offer something more than a pure transmission service.
Johnson said that broadband is an information service because internet providers offer DNS (Domain Name System) services and caching as part of the broadband package. DNS and caching "are determinative here" because they allow broadband users to perform all the functions listed in the definition of an information service, he argued.
"DNS, for example, it generates queries to other servers, it stores and retrieves domain name information, it translates domain name information that is provided by the user into an IP address and back. Caching stores popular content at local servers that users can access, so it satisfies the storage and retrieval functionalities too."
Millett asked why the FCC still considers the telephone service to be telecommunications, despite ruling that broadband isn't.
"I'm having a lot of trouble understanding" how the FCC's description of broadband wouldn't also apply to telephone service. Like broadband a telephone service is constantly used to acquire information and share information", Millett said.
She used the filling of medical prescriptions as an example. Someone can call a pharmacy over the phone and use their voice or push a series of buttons to get a prescription filled, just as they can get a prescription filled by going to a doctor's website, she said. "It seems to be the same functionality, but one is voice and one is typing", she said.
Verizon Wireless' throttling of an unlimited data plan used by Santa Clara County firefighters last year played a role in today's oral arguments.
Santa Clara County Counsel Danielle Goldstein told judges that the FCC failed to address the potential impact that blocking, and throttling could have on public safety.
Millett grilled Johnson on the public safety topic and had him served in a white wine sauce.
"Post-hoc remedies don't work in the public safety context, and unless I missed it, that was not addressed anywhere in the repeal order", Millett said.
Johnson responded that "the burden ought to be on them [the public safety agencies] to show concrete evidence of harm".
Millett cut in, saying, "why is the burden on them? The statute repeatedly states that public safety is an important goal, you had public comments expressing concerns, a lot of them. It seems like you have a statutory obligation, you had a lot of comments, a serious issue that should have been addressed by the commission in the order. That's not a burden on them."
