Thread by @EFFLive

We are watching the oral argument in Mozilla v. FCC, the case that might decide the future of net neutrality in the US. uscourts.rev.vbrick.com/#/events/22070…

Plaintiff attorney Pantelis Michalopoulos points out that the FCC demanding fair behavior of ISPs is nothing new. “You will hear a lot about restoration of the past. This order does not restore anything except an imaginary past.”

Michalopoulos on the FCC's argument that an ISP is not a telecommunications service: “This is like a surrealist painting that shows a pipe and says ‘this is not a pipe’”

Michalopoulos points out that the FCC "did not look at one statement declaration from one consumer" when it determined the consumer perspective of broadband.

And the FCC had more than 50,000 consumer complaints to look at, but it chose to ignore them. nhmc.org/release-nhmc-f…

Michalopoulos: “The FCC has ignored evidence that the [ISPs] have the incentive to hurt edge providers as well is the ability to do this with impunity."

"There’s ample evidence in the record that they can get away with impunity that subscribers cannot leave when they do a bad thing, they can block, throttle, and degrade, and nobody leaves."

Plaintiff attorney Kevin Russell explaining why anti-trust law alone can’t protect net neutrality: a small group of ISPs with concentrated market power can effectively dictate the terms of service for everyone.

We've written before about the limits of antitrust in protecting net neutrality: under current US law, is an economic doctrine that gives little if any weight to freedom of expression and other noneconomic values. eff.org/deeplinks/2017…

Russell points out the crucial flaw in the FCC’s analysis: it attempts to separate Internet access from the functionality that’s necessary to providing that Internet access.

As we’ve pointed out, FCC’s false distinction between “Internet access service” and “a distinct transmission service” is utterly ridiculous. eff.org/deeplinks/2017…

Stephanie Weiner, Internet Association: FCC's argument that it had authority from Congress for transparency rules but not for rules about ISP behavior was too clever by half. That's not what Congress did.

Danielle Goldstein, Santa Clara County, says that the FCC cannot abandon its duty to regulate broadband for public safety purposes. The County had firsthand experience of its fire fighters being throttled by Verizon during a state emergency. eff.org/deeplinks/2018…

Judge: “One has to hope” that carriers won’t actually adopt a policy of blocking or throttling emergency services.

“Hoping” isn’t enough. That's why we need the FCC to enforce net neutrality.

Goldstein: "The FCC cannot abandon this responsibility [to protect public safety] especially in an order where it purports to preempt states and cities from filling that gap." We agree.

Stephen Wu, State of New York, argues that the FCC can’t claim that it lacks the authority to regulate ISP practices but HAS the authority to preempt states from doing so. “Those two propositions can’t exist at the same time.”

The court is coming back from recess. You can listen along with us here (may require an email address). cadc.uscourts.gov/internet/sixty…

FCC's Tom Johnson repeats a frequent FCC talking point, that modern telecommunications providers aren't telecommunications providers because they provide additional services.

Judge's reply: "Are you providing telecom via telecom?"

Once again, the FCC claims that processes like DNS and caching disqualify ISPs as telecommunications services. See our analysis. eff.org/deeplinks/2017…

Judge asks FCC's lawyer what evidence shows that net neutrality rules depressed investment in infrastructure. All he can point to is studies funded by the ISPs themselves.

Those same ISPs have consistently told their own investors that the net neutrality rules have not affected investments. arstechnica.com/information-te…

And dozens of small ISPs have argued that #netneutrality is essential for healthy competition. eff.org/deeplinks/2017…

Judge Millett asks a key question: did ISPs feel "at liberty" to violate net neutrality before the 2015 order? The correct answer is no. That's why the 2017 order is so dangerous.

The FCC wants the FTC to enforce #NetNeutrality. But the FCC's lawyer just admitted that it can't: if discriminatory practices are fully disclosed, they are not "deceptive," meaning the FTC has no authority.

FCC's Tom Johnson waves off questions about sweetheart deals between ISPs and edge providers, saying they're "unlikely." But are they? One of Chairman Pai's first actions was ending the FCC's investigation into such deals. eff.org/deeplinks/2017…

Thank you for joining our live coverage. The message of today's argument is clear: Title II is the only way to legally enforce #netneutrality, and the FCC admitted it.