In December 2010, the Federal Communications Commission adopted the Open Internet Order, enshrining the concept of "network neutrality"—that Internet Service Providers must treat all data on the Internet equally—into law.

Although wireless broadband was exempt from many of its restrictions, the FCC's net neutrality law says that fixed broadband providers "may not block lawful content, applications, services, or non-harmful devices" or practice "unreasonable discrimination" that slows content down or degrades its quality. They also must disclose information about their network management practices.

ISPs don't like this, naturally, but Verizon has objected most strenuously of all. The company sued to halt the Open Internet Order, and after a couple of years' worth of legal filings, the case is now set to be decided by the US Court of Appeals for the District of Columbia Circuit.

Verizon and the FCC on Monday will each get 20 minutes to make their oral arguments. There won't be a trial, as the oral arguments are typically the last step before the court makes its decision, said Senior Staff Attorney John Bergmayer of Public Knowledge, an advocacy group that filed briefs in the case supporting the FCC's position.

"It's really just a chance for the judges to ask questions they feel are not answered in the briefs, to poke at weak points in arguments, etc.," Bergmayer told Ars.

The court will issue a decision when it's good and ready. We don't know when that will happen.

Verizon: Our “First Amendment” rights are under attack

As a refresher course on this complicated topic, Public Knowledge published a series of blog posts on what net neutrality is, what the FCC's Open Internet Order does, and what the appeals court will decide.

Verizon is arguing that the FCC over-stepped its authority in issuing the regulations in the Open Internet Order, that it has a free speech right to block or degrade content under the First Amendment, and that the FCC didn't do a good enough job explaining its reasoning and the evidence that the rules are necessary.

Verizon outlined its argument in a 118-page brief (PDF) filed jointly with MetroPCS in January. MetroPCS dropped out of the case after being acquired by T-Mobile, leaving Verizon to fight alone.

The Open Internet Order exceeds the commission's authority as granted in the Communications Act which "expressly forbids the FCC from applying common-carrier regulation to broadband Internet access," Verizon wrote. The FCC's net neutrality rules "subject broadband providers to quintessential common-carrier duties by compelling them to carry the Internet traffic of all comers, and to do so at a uniform, nondiscriminatory price of zero." The Communications Act includes no other provisions giving the FCC the authority to make the net neutrality rules, Verizon argued.

The FCC rules are also unconstitutional, violating the First and Fifth amendments, Verizon said. "Broadband networks are the modern day microphone by which their owners engage in First Amendment speech," Verizon wrote. "The FCC thus must identify an actual problem and narrowly tailor its solution to solve that problem. The FCC’s 'prophylactic' rules cannot pass that test. The Fifth Amendment likewise protects broadband network owners from government compulsion to turn over their private property for use by others without compensation, especially in light of their multi-billion-dollar investment-backed expectations."

Finally, Verizon argued that the FCC order is "devoid of evidence of any problem sufficient to justify these extensive regulations. The FCC also arbitrarily applied its rules to a single class of service providers even though myriad others in the Internet economy can engage in 'gatekeeping.'"

FCC: Net neutrality will stop ISPs from harming consumers

The FCC counters each of these arguments in its own brief (PDF).

As for whether the FCC has the authority to make net neutrality rules, "the FCC is relying on a broad instruction from Congress to promote broadband deployment and adoption (called the 'Section 706 argument' for the Section of the Telecommunications Act of 1996 that added this law to the Communications Act)," wrote Public Knowledge VP Harold Feld. "In addition, the FCC has also pointed to several specific statutory responsibilities (like, ‘make sure telephone service is affordable,’ ‘make sure video services are competitive,’ ‘make sure wireless carriers serve the public interest’), arguing that it cannot do these things effectively without a network neutrality rule."

The FCC counters Verizon's Constitutional arguments by noting in its brief that "Internet access providers do not engage in speech; they transport the speech of others, as a messenger delivers documents containing speech. Unlike cable systems, newspapers, and other curated media, broadband providers do not exercise editorial discretion. Verizon has defended itself from lawsuits on that very ground. If the First Amendment applies at all, the Open Internet Rules are narrowly tailored to serve important government interests. The rules result in no taking without just compensation because, among other things, broadband access providers are compensated for the use of their networks."

The FCC also said it was justified in making the rules because of "multiple incidents of broadband providers interfering with their customers’ ability to use Internet services, from file sharing services to Internet-based telephony."

Powerful economic incentives coupled with technological progress and limited competition make it easier for ISPs "to discriminate among edge providers and to block customer access to Internet sites of their choosing," the FCC argued.

The appellate court decision ultimately is not likely to hinge on philosophical beliefs about whether net neutrality rules are good or bad. As Feld notes, the court will focus on two questions: "Did the FCC have the authority to make the net neutrality rules? And, even if the FCC does have the authority, does something else prohibit the FCC from exercising that authority here?"

The outcome, however, is important for ensuring that Internet users have access to all the applications and data they want—no matter which ISP they happen to be a customer of.