On October 7th I appeared on a webinar hosted by Prof. Barry Umansky and Ball State’s Digital Policy Institute about the FCC’s Title II case before the DC Circuit Court of Appeals, US Telecom Association v. FCC. The other panelists were Andrew Schwartzman of Georgetown University and Stuart Brotman of Harvard Law School and the Brookings Institution. Check it out, but here’s a brief summary of our hour-long discussion.

Much of our discussion was about whether and how the Court will analyze the FCC’s Open Internet rules under the Chevron doctrine. Andrew argues that this is a Chevron case, that “telecommunications service” is ambiguous in the Communications Act, and that the FCC’s reinterpretation of telecommunications to include Internet access is reasonable. I disagreed and argued that classifying Internet access service as a “telecommunications service” is unreasonable given technical realities and Sections 620, 230, and 231 of the Communications Act.

Later, Andrew contended that ISPs are clearly common carriers and the FCC is simply codifying this reality. Again, I disagreed. ISPs, for instance, reserve the right to revoke service from people based on the content they send or post (like being abusive, harassing, or hateful online). Common carriers don’t do that. ISPs filter content they suspect customers don’t want (like spam). Common carriers don’t do that. ISPs offer customized access services (like parental controls and Web whitelists and blacklists). Common carriers don’t do that.

Stuart raises the point that the deferential Chevron doctrine might not be applied at all. Making this case to the Court–that regulating most of the Internet is too socially and economically significant to receive Chevron deference–seems to be dominant legal strategy for Title II opponents. As Prof. Dan Lyons, points out in a blog post this week, the Supreme Court seems to be increasingly hostile to agencies’ major reinterpretations of law.

We’ll see. I actually agree with my copanelist Andrew that the DC Circuit will tend to view this as a garden-variety administrative law case. Courts are generally deferential to expert agencies on reinterpreting the law and, as Lyons notes, it’s still pretty rare for courts to find that an agency decision does not get substantial deference.

For that reason, I point out in the webinar that the perhaps the strongest argument for the ISPs is raised by Alamo Broadband and Dan Berninger–that the Open Internet rules violate the First Amendment. I wrote recently why the Open Internet rules may violate the First Amendment. I note in the webinar that, unlike administrative law questions, courts are not deferential to agencies when the First Amendment is at issue. Courts interpret the coverage of the First Amendment broadly and the First Amendment is increasingly an effective tool to strike down regulations that implicate speech.

We wrap up the webinar by discussing whether a legislative compromise is possible before the 2016 elections (no). There will more analysis of the legal briefs before the December oral arguments and I’d expect two major issues, whether Chevron applies and whether the rules violate the First Amendment, to be in the conversation.

I know, I know… do we really need to listen to another debate over Net neutrality?!   I too have grown a bit tired of the issue, which has crowded out so many other important issues in the Internet policy world these days. Net neutrality simply sucks all the oxygen out of the room no matter what topic is being discussed. And it is so highly charged that it has become the equivalent of the abortion issue of the high-tech world; intellectual combatants can get so worked up over the topic that seemingly no rational debate can take place at times.

That being said, I do want to encourage everyone to check out this dynamite debate about “Demystifying Net Neutrality,” a Diffusion Group webinar which took place last week. It’s a very level-headed discussion of the issue that features my colleague Barbara Esbin, a PFF Senior Fellow and the Director of PFF’s Center for Communications and Competition Policy, and Chris Riley, a Policy Counsel at Free Press.  You can now download and listen to the debate now from the Diffusion Group website. Barbara also wrote about the discussion over the PFF blog and walks the reader through the discussion. And you won’t be surprised to hear me say I think Barbara gets the better of Chris Riley in the debate!

One thing I found quite interesting in the debate was how Riley struggled to distinguish between “the Internet” versus “Internet access services” for purposes of delineating the proper confines of Net neutrality regulation. Like many other defenders of Net neutrality regulation, (see, most recently, for example, Rob Frieden, “Why the FCC’s Proposed Openness Principles Cannot and Should Not Apply to Internet Application and Content Providers“), Riley and Free Press want us to believe that this distinction is clear-cut and that regulation won’t have unintended consequences.  Of course, such distinctions are always easier in theory than reality, and as Berin Szoka and I argued in our recently paper on “high-tech mutually assured destruction,” regulation always spreads. The march of regulation can sometimes be glacial, but it is, sadly, almost inevitable: Regulatory regimes grow but almost never contract.

Anyway, listen to the entire webinar discussion. It’s worth your time.