{"id":5800,"date":"2018-12-21T12:12:55","date_gmt":"2018-12-21T16:12:55","guid":{"rendered":"http:\/\/ncjolt.org\/?p=5800"},"modified":"2020-06-04T20:52:29","modified_gmt":"2020-06-04T20:52:29","slug":"tech-companies-states-rally-against-the-fccs-abandonment-of-net-neutrality-mozilla-v-fcc","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/tech-companies-states-rally-against-the-fccs-abandonment-of-net-neutrality-mozilla-v-fcc\/","title":{"rendered":"Tech Companies & States Rally Against the FCC\u2019s Abandonment of Net Neutrality: Mozilla v. FCC"},"content":{"rendered":"\n

In 2015, the Obama\nAdministration\u2019s FCC passed the Open Internet Order<\/a> which promoted net neutrality by imposing\nregulations on broadband internet providers. Now, in a lengthy brief of counter-arguments<\/a> filed on October 11, 2018, the Trump\nAdministration\u2019s FCC claimed that they never had the legal authority to enact\nsuch an order. What happened?<\/p>\n\n\n

Net neutrality represents the principle that all web pages on the internet should be treated equally<\/a>, 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<\/a> for internet broadband providers: (1) no blocking specific web pages, (2) no throttling (providers \u201cshall not impair or degrade lawful internet traffic on the basis of internet content, application, or service\u201d), and (3) no paid prioritization (providers shall not \u201cdirectly or indirectly favor some traffic over other traffic\u201d).<\/p>\n\n\n

While the FCC promoted\nnet neutrality three years ago, it is now defending itself in Mozilla v. FCC<\/a>, a lawsuit that challenges the repeal of the\nOpen Internet Order. The FCC Commissioners narrowly voted to overturn<\/a> the Order in December of 2017. Mozilla Corp.,\nalong with other tech companies such as Vimeo, many internet advocacy groups,\nand 22 state attorney general’s filed this suit in response. The plaintiffs\nallege that the FCC\u2019s decision was \u201carbitrary, capricious, and an abuse of\ndiscretion,\u201d among many other things. The \u201carbitrary\u201d allegation is in part\nbased on the bureaucratic mess of a public comment period<\/a> that preceded the 2017 vote. There were\napproximately 22 million comments filed, at least 21 million of which were\nlikely fake and posted by bots. There were at least 800,000 other comments\nfiled by individual U.S. citizens or organizations, 99.7% of which voiced\nconcern over repealing the Order and stated their support for net neutrality.\nDespite this public backlash, the FCC continued with their repeal, which\nMozilla et. al believes was an arbitrary and capricious decision.<\/p>\n\n\n

The FCC filed a response brief to Mozilla\u2019s lawsuit on October 11, 2018. One of the agency\u2019s arguments is that the internet is an \u201cinformation service\u201d rather than a \u201ctelecommunications service\u201d under the Communications Act of 1934. The Act, which gives the FCC its Congressionally-approved authority, defines a telecommunications service<\/a> as \u201cthe offering of telecommunications directly for a fee to the public,\u201d and defines an information service as \u201cthe offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.\u201d 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 \u201ccommon carrier services\u201d rather than \u201cinformation services,\u201d and the Act prohibits \u201cunjust or unreasonable discrimination\u201d<\/a> by common carriers.<\/p>\n\n\n

Judge Kavanaugh (of recent Supreme Court infamy) dissented from the denial in a highly flawed and misinformed opinion<\/a>. <\/p><\/blockquote>\n\n\n

According to a 2016\ndecision by the D.C. Circuit Court, the FCC correctly classified broadband\nproviders as common carriers, meaning that they did in fact have the legal\nauthority to promulgate net neutrality rules. USTA v. FCC<\/a> was filed by a broadband provider in federal court, in hopes of\noverturning the 2015 rules. However, the D.C. Circuit judges upheld the FCC\u2019s 2015\nclassifications and rules.<\/p>\n\n\n

After USTA petitioned\nto have the case re-heard and was denied, Judge Kavanaugh (of recent Supreme\nCourt infamy) dissented from the denial in a highly flawed and misinformed opinion<\/a>. Kavanaugh, then sitting on the D.C. Circuit,\nmisinterpreted legal issues such as the decision in Brand X<\/em>, a major\n2005 Supreme Court case, and the definition of a common carrier under the\nCommunications Act. This shows that our newest Supreme Court justice is\nprepared to \u201ctake his ignorance unapologetically to the highest court\nin the land.\u201d<\/a>\nHopefully he has read up on the issue since then, as the Supreme Court is sure\nto hear more cases involving internet regulation and administrative agencies in\nthe next several years.<\/p>\n\n\n

Since the FCC\nCommissioners voted to repeal net neutrality in December 2017, there have been\na number of legal challenges, including a vote in the Senate to reinstate net\nneutrality and the California state government\u2019s attempt to write its own net\nneutrality laws. Mozilla v. FCC is currently the only direct legal challenge to\nthe FCC\u2019s repeal. Hearings are scheduled<\/a> to begin on February 1, 2019.<\/p>\n","protected":false},"excerpt":{"rendered":"

In 2015, the Obama Administration\u2019s 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\u2019s FCC claimed that they never had the legal authority to enact such an order. What happened? Net neutrality …<\/a><\/p>\n","protected":false},"author":1,"featured_media":5801,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5800"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=5800"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5800\/revisions"}],"predecessor-version":[{"id":6898,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5800\/revisions\/6898"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/5801"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=5800"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=5800"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=5800"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}