The Avatar Factor

When you consider the excruciatingly erudite nature of legal court filings, oral arguments can seem a bit superfluous. After all, why force both attorneys to stand in front of a panel of judges arguing the same points that they already exhaustively covered in their briefs? What’s the point? Well, last week’s early salvo in the larger net neutrality battle shows that oral arguments can sometimes take center stage and provide many clues on how these skirmishes will play out over many months and years. On the hot seats were FCC Acting General Counsel Austin Schlick and Wiley Rein attorney Helgi Walker, who went mano-a-mano (or mano-a-womano) in the U.S. Appeals Court, D.C., where a panel of grumpy judges peppered them with questions in an effort to pick apart their legal arguments.

 

Similar to oral arguments at the U.S. Supreme Court, this is high theater and perhaps the most (if not the only) exciting part of a complicated and technology-focused legal fight. In this case, Comcast (represented by Walker) is challenging the FCC’s Kevin Martin-era decision in 2008 to slap the MSO for its bandwidth management practices, which some believe crossed the line in “controlling” Internet activity. Basically, peer-to-peer equals bad. Other stuff sanctioned by “the man” equals good. It’s not really that simple. But the debate has degenerated into a supposedly David-vs.-Goliath struggle between “the people” (represented by public interest groups) and “Big Media” represented by evil corporations intent on firebombing the Internet utopia just like those meany humans in “Avatar” destroyed the alien rainforest. Nevermind that the underdog Na’vi in this story are actually other multi-billion-dollar corporations like Google and Amazon, which simply want to ride those broadband pipes without any interference from their pesky owners. Consumers are really just the “unobtainium” that everybody wants to mine, mine, mine.

 

Friday’s oral arguments were just one battle in a much larger war, but this one seemed to send the FCC into retreat mode. Without a doubt, the three-judge panel saved its grumpiest questioning for Schlick, who stood up to them valiantly as he defended Martin’s tendency to just do stuff without thinking about the legal consequences. In this case, the FCC fell back on its broad jurisdiction to justify punishing Comcast for doing something that wasn’t really illegal but just didn’t feel right. Or something. Indeed, no law prevented Comcast from ratcheting back Internet traffic to relieve congestion. In fact, that’s kind of the point of network management. But Martin’s FCC didn’t see it that way, suggesting that its broad authority to protect the Internet trumped the small detail that it wasn’t really interpreting any specific statute. To be sure, the judges were extremely skeptical, even at one point asking Schlick how badly he wanted to lose. (His answer: As narrowly as possible). And while Walker also faced some tough questions about whether the FCC’s actions were really as egregious as she claimed, she didn’t face the same uphill climb as Schlick. It helped that she exhibited an almost Rain-Man-like recall of case law to back up her points. But she clearly had her way with the judges. There were even light moments, few of which showed up during Schlick’s turn.

 

In a way, the FCC has a difficult task: Justifying another Martin-era attempt to sock it to cable because it wouldn’t play ball with him on a-la-carte. Schlick actually held up well when you consider the court’s hostility to the FCC’s position. But the reality is that courts often deliberate in ways that can reverse the fortunes of all involved. The court may decide that the FCC did actually have enough authority under various sections of the Communications Act to act in this particular, narrowly defined case. Or it could issue an extremely nuanced ruling that hands Comcast a win of sorts but still rules that the FCC can exert limited authority over some kinds of bandwidth management in some cases. Either kind of ruling could affect consumers and numerous players in several big industries, including cable, as well as new FCC chmn Julius Genachowski’s attempts to create net neutrality rules. The court will likely rule sometime in the Spring or early Summer, so the world doesn't have long to wait. And if this case ever ends up in a sequel at the Supreme Court, watch out: A High Court decision could define the Internet landscape for a generation.