In 2015, the Obama Administration’s FCC passed the Open Internet Order which promoted net neutrality by imposing regulations on broadband internet providers. Now, in a lengthy brief of counter-arguments filed on October 11, 2018, the Trump Administration’s FCC claimed that they never had the legal authority to enact such an order. What happened?
Net neutrality represents the principle that all web pages on the internet should be treated equally, rather than giving broadband providers the opportunity to set faster loading times and better service for certain pages. The Open Internet Order sought to codify net neutrality into a set of federal regulations by coming up with three main rules for internet broadband providers: (1) no blocking specific web pages, (2) no throttling (providers “shall not impair or degrade lawful internet traffic on the basis of internet content, application, or service”), and (3) no paid prioritization (providers shall not “directly or indirectly favor some traffic over other traffic”).
While the FCC promoted net neutrality three years ago, it is now defending itself in Mozilla v. FCC, a lawsuit that challenges the repeal of the Open Internet Order. The FCC Commissioners narrowly voted to overturn the Order in December of 2017. Mozilla Corp., along with other tech companies such as Vimeo, many internet advocacy groups, and 22 state attorney general’s filed this suit in response. The plaintiffs allege that the FCC’s decision was “arbitrary, capricious, and an abuse of discretion,” among many other things. The “arbitrary” allegation is in part based on the bureaucratic mess of a public comment period that preceded the 2017 vote. There were approximately 22 million comments filed, at least 21 million of which were likely fake and posted by bots. There were at least 800,000 other comments filed by individual U.S. citizens or organizations, 99.7% of which voiced concern over repealing the Order and stated their support for net neutrality. Despite this public backlash, the FCC continued with their repeal, which Mozilla et. al believes was an arbitrary and capricious decision.
The FCC filed a response brief to Mozilla’s lawsuit on October 11, 2018. One of the agency’s arguments is that the internet is an “information service” rather than a “telecommunications service” under the Communications Act of 1934. The Act, which gives the FCC its Congressionally-approved authority, defines a telecommunications service as “the offering of telecommunications directly for a fee to the public,” and defines an information service as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” The FCC claims that it does not have the power to put constraints on information services like the ones promulgated in the Open Internet Order. However, in 2015 the agency re-classified broadband providers as “common carrier services” rather than “information services,” and the Act prohibits “unjust or unreasonable discrimination” by common carriers.
Judge Kavanaugh (of recent Supreme Court infamy) dissented from the denial in a highly flawed and misinformed opinion.
According to a 2016 decision by the D.C. Circuit Court, the FCC correctly classified broadband providers as common carriers, meaning that they did in fact have the legal authority to promulgate net neutrality rules. USTA v. FCC was filed by a broadband provider in federal court, in hopes of overturning the 2015 rules. However, the D.C. Circuit judges upheld the FCC’s 2015 classifications and rules.
After USTA petitioned to have the case re-heard and was denied, Judge Kavanaugh (of recent Supreme Court infamy) dissented from the denial in a highly flawed and misinformed opinion. Kavanaugh, then sitting on the D.C. Circuit, misinterpreted legal issues such as the decision in Brand X, a major 2005 Supreme Court case, and the definition of a common carrier under the Communications Act. This shows that our newest Supreme Court justice is prepared to “take his ignorance unapologetically to the highest court in the land.” Hopefully he has read up on the issue since then, as the Supreme Court is sure to hear more cases involving internet regulation and administrative agencies in the next several years.
Since the FCC Commissioners voted to repeal net neutrality in December 2017, there have been a number of legal challenges, including a vote in the Senate to reinstate net neutrality and the California state government’s attempt to write its own net neutrality laws. Mozilla v. FCC is currently the only direct legal challenge to the FCC’s repeal. Hearings are scheduled to begin on February 1, 2019.