Oral arguments began Friday in the case of Mozilla v. FCC, a lawsuit brought by a wide range of advocacy groups and trade organisations representing some of the nation’s largest internet companies, which all seek to vacate the vote to repeal net neutrality pushed through by the Federal Communications Commission in late 2017.
At the heart of the case is the question of whether the FCC was within its rights to overturn the Open Internet Order, which it passed in 2015 under the Obama administration. The order implemented rules against blocking, throttling, or paid prioritisation — so-called fast lanes — by mobile and fixed broadband providers. It accomplished this by reclassifying broadband as a “telecommunications service” under Title II of the 1934 Communications Act, and in so granted itself the authority to regulate broadband service nationwide.
The case is brought before U.S. Court of Appeals for the District of Columbia, where it was transferred last year from the 9th Circuit, which had won a multi-district lottery to hear the case. The D.C. Circuit was the chosen venue ultimately due to its history of considering virtually identical issues in prior proceedings. The court previously upheld the 2015 Open Internet Order, finding it lawful and justified by the arguments of the net neutrality advocates.
The groups opposing the FCC include a hodgepodge of tech companies and consumer advocacy groups, as well as state and local officials — among them: the Mozilla Corporation; Etsy; Free Press; Public Knowledge; the National Hispanic Media Coalition; the Open Technology Institute; the Center for Democracy & Technology, and others. Twenty-two states and the District of Columbia have also joined the petitioners.
“Nothing has changed since the 2015 rulemaking but the leadership of the FCC,” said Lisa Hayes, general counsel for the Center of Democracy & Technology. “The FCC lacks compelling evidence justifying its 2018 order, and I expect the DC Circuit will find that the FCC’s actions were arbitrary and capricious.”
Matthew Berry, the FCC chief of staff, meanwhile, said that the Supreme Court has “already affirmed the FCC’s authority to classify broadband as a Title I information service, and we have every reason to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework.”
After taking control of the FCC in early 2017 with President Trump’s appointment of Ajit Pai as chairman, Republicans maintained a 3-2 majority on the panel, which allowed them to push through the repeal, despite overwhelming opposition by the American public. Pai’s arguments in favour of pushing through the repeal involving claiming the Obama-era rules had stifled innovation, and that, by minimising his own agencies ability to regulate the telecom industry, he would help spur a new era of investment in the nation’s broadband infrastructure.
But there are two key flaws in Pai’s reasoning, one of which has only recently become demonstrably evident. First, the net neutrality rules did not hamper investment and the companies he claimed were being suffocated by “heavy-handed” regulations admitted as much.
Secondly, Pai’s rollback hasn’t spurred much of anything. As long-time telecom reporter Karl Bode wrote for Motherboard last week: “Network investment is down, layoffs abound, and networks are falling apart.”
Newly appointed FCC Commissioner Geoffrey Starts recently accused Pai of ignoring evidence and hastily abandoning “the carefully crafted, common sense Open Internet framework” established over three years ago. “In the process,” he said, the FCC “ignored the will of millions of people who made their support for a free and open Internet crystal clear.”
Free Press Policy Director Matt Wood accused Pai of ignoring “procedural flaws” in the FCC’s decision-making, “and irregularities in the agency’s own commenting process.”
On Thursday, Gizmodo published a blog revealing the ties between a former Trump campaign statewide director’s organisation, an RNC email list provider, and potentially hundreds of thousands of fraudulent comments submitted to the FCC in support of Chairman Pai’s efforts.
More than a dozen organisations are under investigation in the state of New York, suspected of filing fake comments to the agency during its rulemaking process.
“The docket shows there was a genuine and substantive public outcry opposing Pai’s decision and supporting the Net Neutrality rules, but there were also fraudulent submissions that the FCC refuses to investigate,” added Wood.
Among the organisations supporting the petitioners in court, the Internet Association (IA) represents dozens of top internet companies, including Amazon, Microsoft, Facebook, Twitter, Google, and eBay. “The internet industry stands with consumers in this fight,” said IA president and CEO Michael Beckerman.
“The FCC—in crafting their 2017 rule—stands with ISPs over the interests of everyday Americans,” he said.
This is a developing story.