Mozilla Corp. v. FCC

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Mozilla v. FCC
Seal of the Court of Appeals for the District of Columbia.png
Court United States Court of Appeals for the District of Columbia Circuit
Full case name Mozilla Corporation v. Federal Communications Commission and United States of America
ArguedFebruary 1 2019
DecidedOctober 1 2019
Citation940 F. 3d 1
Holding
The FCC has the authority to reclassify Internet services under the Communications Act of 1934, but does not have the authority to restrict state or local laws regulating Internet services.
Court membership
Judges sitting Stephen F. Williams, Patricia Millett, Robert L. Wilkins
Case opinions
Per curiam
ConcurrenceMillett
ConcurrenceWilkins
Concur/dissentWilliams

Mozilla Corp. v. FCC, 940 F. 3d 1 (D.C. Cir., 2019) was a ruling the United States Court of Appeals for the District of Columbia Circuit in 2019 related to net neutrality in the United States. The case centered on the Federal Communications Commission (FCC)'s decision in 2017 to rollback its prior 2015 Open Internet Order, reclassifying Internet services as an information service rather than as a common carrier, deregulating principles of net neutrality that had been put in place with the 2015 order. The proposed rollback had been publicly criticized during the open period of discussion, and following the FCC's issuing of the rollback, several states and Internet companies sued the FCC. These cases were consolidated into the one led by the Mozilla Corporation. [1]

Contents

The Appeals Court ruled in favor of the FCC in October 2019, relying on the Supreme Court decision of National Cable & Telecommunications Ass'n v. Brand X Internet Services (2005) that the FCC has such authority to reclassify Internet services, and thus allowed the rollback. However, the Court ruled against the FCC in attempting to block state- and local-level laws that regulated the Internet, enabling states to pass net neutrality legislation. [1]

Background

Net neutrality in the United States has been of concern since the Internet became open to public use through Internet service providers (ISPs). Net neutrality broadly encompasses the idea that all data traffic on the Internet should be treated equal, counter to past and planned actions of ISPs to offered tiered service plans that block or throttle access to selected sites at lower payment tiers, among other provisions. Within the United States, proponents of net neutrality, which typically includes Democrats and large technology companies, believe it is necessary to prevent ISPs from blocking access to Internet services or to throttle the connection to these services as to maintain an open flow of information across the Internet without discrimination. Opponents of net neutrality, principally Republicans and ISPs, argue that the ability to offer tiered rates of service would help promote competition in providing Internet service across America, and enforced net neutrality regulations would stifle growth. [2]

A central facet of the debate around net neutrality is how ISPs are classified under the Communications Act of 1934. Under this act, they may either treated as "information service" under Title I of the Act, or as a "common carrier service" under Title II. Common carrier classification under Title II would mean that the FCC, which is granted authority to oversee communication services in the United States, could apply regulations to ISPs, which would include enforcing the principles of net neutrality. But under Title I, the FCC would not have significant authority to regulate ISPs. [2] The FCC's authority to classify ISPs in this matter was upheld in the Supreme Court case National Cable & Telecommunications Ass'n v. Brand X Internet Services in 2005, based principle on the Chevron deference for the judiciary to allow federal agencies' interpretations of ambiguous Congressional language. With Brand X's ruling left in place the FCC's decision to classified cable-based ISPs as information services under Title I. [3]

Case background

The FCC in the early 2010s, while under the Barack Obama administration, were favorable to implementing net neutrality positions. The first FCC Commissioner in Obama's term, Julius Genachowski, was a strong proponent of net neutrality. [4] Tom Wheeler, appointed as the new FCC Commissioner in 2013, had stated he was for an open Internet but favored the notion of "fast lanes" for some traffic, [5] but eventually agreed to full net neutrality goals as to maintain the goals of an open Internet. [6] The FCC introduced the FCC Open Internet Order 2010 that enshrined principles of net neutrality. [7] The order was challenged by ISPs, and in 2014, the DC Appeals Court ruled in Verizon Communications Inc. v. FCC that the FCC did not have the authority to set net neutrality requirements on ISPs unless they were classified as a common carrier. [8] This led the FCC to issue a new Open Internet Order in 2015 that not only continued to enshrine net neutrality principles but also classified ISPs as Title II common carriers. [9] Again, ISPs sued the FCC over this. In 2016, the DC District Court ruled in United States Telecom Ass'n v. FCC in favor of the FCC and upholding the reclassification of ISPs and the neutrality rules. [10]

With Donald Trump becoming president in 2016, Ajit Pai, a current member of the FCC was elevated to the new FCC Commissioner. Pai was a strong critic of the FCC having oversight of net neutrality prior to this position, believing that the FCC should allow ISPs to self-regulate, and that if there was to be regulation on net neutrality, it needed to come from Congress. [11] [12] With Pai as Commissioner, and with Republican-appointed members outnumbering the Democrat-appointed ones 3–2, Pai led the FCC to propose a rollback of the 2015 Open Internet Order. By May 2017, the FCC voted to proceed the process of rolling back the 2015 Order by issuing a public notice of the FCC's intent of the rule change, titled "Restoring Internet Freedom". In addition to the rollback, the proposed rule would prevent states and local governments from passing legislation on net neutrality. [13]

The proposed changed drew heavy criticism from proponents of net neutrality, with several organized activism events created to draw the public's attention to this. During the public commenting period, running from May to August 2017, the FCC received more than 21 million comments related to the change. [14] Analysis of the comments following their release after the public period found a near majority of these opposed to the rule change, even after accounting for potential fraud that had been discovered. [15] [16] [17] Despite the public stance on the rule change, the FCC voted on December 14, 2017, to enforce the rollback. [18]

Appeals Court

Immediately after the FCC vote in December, several states issued statements of the intent to sue the FCC over this change. [19] Once the rule change was published in the Federal Register in February 2018, twenty-two states and several other state and local agencies joined in the complaint lodged by Mozilla Corporation and Vimeo against the FCC, to be heard in the DC Appeals Court. [20] The suit asserted that the FCC had been "arbitrary and capricious" in handling net neutrality, and disregarded "critical record evidence on industry practices and harm to consumers and businesses". [20]

The case was heard before the DC Appeals Court on February 1, 2019, before Senior Circuit Judge Stephen F. Williams and Circuit Judges Patricia Millett and Robert L. Wilkins. [21] Mozilla and the states argued on points that the FCC, in making the rollback rule, failed to analyze current market conditions correctly, account for public safety, erred in how it classified ISPs as an information service, and asserted that the FCC did not have authority to block states from passing net neutrality laws. [22] The FCC argued that the former net neutrality rules had harmed broadband investment, and that consumers would be protected by required transparency reports from ISPs. Several ISPs and trade groups representing them also joined the FCC to argue that there was evidence to suggest that net neutrality rules were required to prevent consumers from being harmed by aggressive throttling and blocking. [22]

A major point brought up by the judges was related to the 2018 California wildfires, [22] in which it had been discovered that first responders' communications, operating through Verizon, were being throttled due to going over a certain bandwidth capacity, which significantly reduced the effectiveness of the responders to react to the changing fire conditions. [23]

Concurrent actions

While the case was pending in the Appeals Court, California passed the California Internet Consumer Protection and Net Neutrality Act of 2018 in September 2018. The law was written to enforce net neutrality principles for ISPs operating in California. The law was passed despite the fact that the FCC order passed earlier asserted states could not set net neutrality regulations themselves. [24] Shortly after passage, the FCC sued California for this law on the basis of the 2017 rule; the FCC was joined by several ISPs and agencies representing them in suing the state. [25] Both sides agreed to hold off any further legislation or enforcement of the law pending the decision of the Mozilla case. [26]

Decision

The DC Appeals Court issued its decision on October 1, 2019. In the per curiam decision, the Court voted to uphold the FCC's rollback of the 2015 Open Internet Order, ruling that the agency had been affirmed to have that authority through the prior Brand X case and was not at liberty to challenge the Supreme Court ruling there. [3] [27] The decision affirmed several of the points made by the FCC in relation to the potential harm to ISPs by imposing net neutrality, and agreeing that ISPs are more common to information services than common carriers. [27]

However, on the matter of limiting state and local-level enforcement of net neutrality, the Court ruled that the FCC had overstepped its bounds, and reversed that part of the rule. The opinion denied the claim that the FCC had implied authority on this matter, and stated "If Congress wanted Title I to vest the Commission with some form of Dormant-Commerce-Clause-like power to negate States' statutory (and sovereign) authority just by washing its hands of its own regulatory authority, Congress could have said so." [27] In addition, the Court ordered the FCC to review its rule change on the effect for public safety as related to the California wildfire incident, and the impact on low-income telecommunications services. [28] [29] [30]

Each of the three judges wrote an additional opinion. Both Circuit Judges Millett and Wilkens wrote in concurrence of the per curiam decision, while Senior Circuit Judge Williams wrote in part concurrence and part in dissent. All three reflected on the change of the Internet structure since Brand X was decided and pointing out that today, ISPs are better classified as information services than common carriers. At the time of Brand X, the Supreme Court had relied on the existing of core technologies like caching at the ISP level and the Domain Name Service to justify that ISPs are information services. In this ruling, the judges noted that now, Internet services are defined by information that consumers can access, and as such, ISPs should be able to offer those consumers who want faster access to that information the capabilities to offer tiered service without regulation. [3] [27]

Subsequent actions

Because of the Appeals Court decision that only partially upheld the FCC's ruling, either side may seek appeals with the Supreme Court. Parties that supported the plaintiffs, including the Computer & Communications Industry Association, other trade groups, and some of the states that joined with them sought an en banc hearing from the full Appeals Court, but this request was denied in February 2020. [31]

While the decision was seen as a short-term defeat for net neutrality proponents, the decision clearing the way for state and local regulation was seen as net positive. While California's net neutrality law is still barred from enforcement until the FCC's case against the state is complete, state lawmakers saw the decision as a victory since they expect the courts to clear the state of any wrongdoing in passing the legislation. [32] Four other states have passed or have pending legislation to enforce net neutrality at the state level while an additional 33 other states along with the District of Columbia have proposed bills favoring net neutrality. However, it is expected that there will be ongoing legal challenges from ISPs for these state bills that may limit their enforcement. [33]

Another potential route would be for Congress to pass legislation overriding the FCC's decision to classify ISPs as common carriers or otherwise enforce net neutrality. Some lawmakers have attempted to pass such laws, but none has succeeded. There are also concerns that in haste to pass legislation, Congress may support poorly-thought out legislation, or legislation that also contains "trojan horse" clauses favorable to special interests. Mark Stanley of Demand Progress suggested that ISPs and telecomm groups may seek to lobby Congress to pass a weaker form of net neutrality to minimally satisfy its proponents but still would be beneficial to ISPs. [34]

The FCC issued another public commenting period from February to March 2020 to gain input on the factors of public safety, reduced infrastructure spending, and impact on the Lifeline program as identified in the Appeals Court ruling. [35] Following the public comment period, the FCC voted again in October 2020 on the same 3–2 lines to uphold their prior decision, with Pai, in a separate post, stating that based on the public comments he was "confident that the regulatory framework we set forth in the Restoring Internet Freedom Order appropriately and adequately addresses each issue." [36]

Related Research Articles

A common carrier in common law countries is a person or company that transports goods or people for any person or company and is responsible for any possible loss of the goods during transport. A common carrier offers its services to the general public under license or authority provided by a regulatory body, which has usually been granted "ministerial authority" by the legislation that created it. The regulatory body may create, interpret, and enforce its regulations upon the common carrier with independence and finality as long as it acts within the bounds of the enabling legislation.

<span class="mw-page-title-main">Federal Communications Commission</span> Independent U.S. government agency

The Federal Communications Commission (FCC) is an independent agency of the United States government that regulates communications by radio, television, wire, satellite, and cable across the United States. The FCC maintains jurisdiction over the areas of broadband access, fair competition, radio frequency use, media responsibility, public safety, and homeland security.

<span class="mw-page-title-main">Internet service provider</span> Organization that provides access to the Internet

An Internet service provider (ISP) is an organization that provides myriad services related to accessing, using, managing, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise privately owned.

<span class="mw-page-title-main">Net neutrality</span> Principle that Internet service providers should treat all data equally

Network neutrality, often referred to as net neutrality, is the principle that Internet service providers (ISPs) must treat all Internet communications equally, offering users and online content providers consistent transfer rates regardless of content, website, platform, application, type of equipment, source address, destination address, or method of communication. Net neutrality was advocated for in the 1990s by the presidential administration of Bill Clinton in the United States. Clinton's signing of the Telecommunications Act of 1996, an amendment to the Communications Act of 1934. In 2025, an American court ruled that internet companies should not be regulated like utilities, which weakened net neutrality regulation.

National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), was a United States Supreme Court case in which the court held that decisions by the Federal Communications Commission (FCC) on how to regulate Internet service providers are eligible for Chevron deference, in which the judiciary defers to an administrative agency's expertise under its governing statutes. While the case concerned routine regulatory processes at the FCC and applied to interpretations of the Communications Act of 1934 and Telecommunications Act of 1996, the ruling has become an important precedent on the matter of regulating network neutrality in the United States.

In the United States, net neutrality—the principle that Internet service providers (ISPs) should make no distinctions between different kinds of content on the Internet, and to not discriminate based on such distinctions—has been an issue of contention between end-users and ISPs since the 1990s. With net neutrality, ISPs may not intentionally block, slow down, or charge different rates for specific online content. Without net neutrality, ISPs may prioritize certain types of traffic, meter others, or potentially block specific types of content, while charging consumers different rates for that content.

Net neutrality in Canada is a debated issue, but not to the degree of partisanship in other nations, such as the United States, in part because of its federal regulatory structure and pre-existing supportive laws that were enacted decades before the debate arose. In Canada, Internet service providers (ISPs) generally provide Internet service in a neutral manner. Some notable incidents otherwise have included Bell Canada's throttling of certain protocols and Telus's censorship of a specific website critical of the company.

<i>Comcast Corp. v. FCC</i> 2010 US Court of Appeals for the District of Columbia case

Comcast Corp. v. FCC, 600 F.3d 642, is a case at the United States Court of Appeals for the District of Columbia holding that the Federal Communications Commission (FCC) does not have ancillary jurisdiction over the content delivery choices of Internet service providers, under the language of the Communications Act of 1934. In so holding, the Court vacated a 2008 order issued by the FCC that asserted jurisdiction over network management policies and censured Comcast from interfering with its subscribers' use of peer-to-peer software. The case has been regarded as an important precedent on whether the FCC can regulate network neutrality.

The Federal Communications Commission Open Internet Order of 2010 is a set of regulations that move towards the establishment of the internet neutrality concept. Some opponents of net neutrality believe such internet regulation would inhibit innovation by preventing providers from capitalizing on their broadband investments and reinvesting that money into higher quality services for consumers. Supporters of net neutrality argue that the presence of content restrictions by network providers represents a threat to individual expression and the rights of the First Amendment. Open Internet strikes a balance between these two camps by creating a compromised set of regulations that treats all internet traffic in "roughly the same way". In Verizon v. FCC, the Court of Appeals for the D.C. Circuit vacated portions of the order that the court determined could only be applied to common carriers.

<span class="mw-page-title-main">Ajit Pai</span> American lawyer (born 1973)

Ajit Varadaraj Pai is an American lawyer who served as chairman of the Federal Communications Commission (FCC) from 2017 to 2021. He has been a partner at the private-equity firm Searchlight Capital since April 2021.

The Internet Association (IA) was an American lobbying group based in Washington, D.C., which represented companies involved in the Internet. It was founded in 2012 by Michael Beckerman and several companies, including Google, Amazon, eBay, and Facebook, and was most recently headed by president and CEO K. Dane Snowden before shutting down.

Fight for the Future is a nonprofit advocacy group in the area of digital rights founded in 2011. The group aims to promote causes related to copyright legislation, as well as online privacy and censorship through the use of the Internet.

<i>Verizon Communications Inc. v. FCC</i> (2014)

Verizon Communications Inc. v. Federal Communications Commission, 740 F.3d 623, was a case at the U.S. Court of Appeals for the D.C. Circuit vacating portions of the FCC Open Internet Order of 2010, which the court determined could only be applied to common carriers and not to Internet service providers. The case was initiated by Verizon, which would have been subjected to the proposed FCC rules, though they had not yet gone into effect. The case has been regarded as an important precedent on whether the FCC can regulate network neutrality.

<span class="mw-page-title-main">Internet Slowdown Day</span> 2014 online protest

Internet Slowdown Day, part of the "Battle for the Net" initiative, was a series of protests against the repeal of net neutrality laws coordinated by websites and advocacy groups in the United States occurring on September 10, 2014. The official site explains: "On September 10th, sites across the web will display an alert with a symbolic 'loading' symbol and promote a call to action for users to push comments to the FCC, Congress, and the White House."

Net neutrality law refers to laws and regulations which enforce the principle of net neutrality.

<i>United States Telecom Association v. FCC</i> (2016)

United States Telecom Association v. FCC, 825 F. 3d 674, was a case at the U.S. Court of Appeals for the D.C. Circuit upholding an action by the Federal Communications Commission (FCC) the previous year in which broadband Internet was reclassified as a "telecommunications service" under the Communications Act of 1934, after which Internet service providers (ISPs) were required to follow common carrier regulations.

"Net Neutrality" is the first segment devoted to net neutrality in the United States of the HBO news satire television series Last Week Tonight with John Oliver. It aired for 13 minutes on June 1, 2014, as part of the fifth episode of Last Week Tonight's first season.

Net neutrality is the principle that governments should mandate Internet service providers to treat all data on the Internet the same, and not discriminate or charge differently by user, content, website, platform, application, type of attached equipment, or method of communication. For instance, under these principles, internet service providers are unable to intentionally block, slow down or charge money for specific websites and online content.

The California Internet Consumer Protection and Net Neutrality Act of 2018 is a law in California designed to protect net neutrality. It was signed into law on September 30, 2018.

"Net Neutrality II" is the second segment of the HBO news satire television series Last Week Tonight with John Oliver devoted to net neutrality in the United States. It aired on May 7, 2017, for 19 minutes, as part of the eleventh episode of the fourth season, and the 100th episode overall.

References

  1. 1 2 Mozilla Corp. v. Federal Communications Commission, 940 F. 3d 1 (D.C. Cir., 2019).
  2. 1 2 Finley, Klint (May 9, 2018). "The WIRED Guide to Net Neutrality". Wired . Retrieved October 4, 2019.
  3. 1 2 3 Brodkin, Jon (October 2, 2019). "Why Ajit Pai's "unhinged" net neutrality repeal was upheld by judges". Ars Technica . Retrieved October 4, 2019.
  4. ↑ Labaton, Stephen (January 13, 2009). "Julius Genachowski to Be Nominee for F.C.C. Chairman". The New York Times . Retrieved October 4, 2019.
  5. ↑ O'Toole, James (April 23, 2014). "Regulators pave way for Internet "fast lane" with net neutrality rules". Archived from the original on November 26, 2014.
  6. ↑ Brodkin, Jon (December 6, 2017). "Tom Wheeler slams Ajit Pai's plan to kill net neutrality rules". Ars Technica . Retrieved October 4, 2019.
  7. ↑ Gustin, Sam (December 21, 2010). "FCC Passes Compromise Net Neutrality Rules". Wired . Retrieved October 4, 2019.
  8. ↑ Brodkin, Jon (October 4, 2019). "Net neutrality is half-dead: Court strikes down FCC's anti-blocking rule" . Retrieved January 14, 2014.
  9. ↑ Reisinger, Don (April 13, 2015). "Net neutrality rules get published – let the lawsuits begin". CNET . Retrieved April 13, 2015.
  10. ↑ Kang, Cecelia (June 15, 2016). "Court Backs Rules Treating Internet as Utility, Not Luxury". The New York Times . Retrieved October 26, 2018.
  11. ↑ Wyatt, Edward (May 15, 2014). "F.C.C. Backs Opening Net Neutrality Rules for Debate". New York Times. Retrieved December 14, 2017.
  12. ↑ Selyukh, Alina, David Greene (May 5, 2017). "FCC Chief Makes Case For Tackling Net Neutrality Violations 'After The Fact'". NPR. Retrieved May 26, 2017.{{cite web}}: CS1 maint: multiple names: authors list (link)
  13. ↑ Fiegerman, Seth (May 18, 2017). "FCC votes to move forward with net neutrality rollback". CNN Tech. Retrieved May 26, 2017.
  14. ↑ Romm, Tony; Molla, Rani (August 30, 2017). "Many of the FCC's record-breaking 21 million net neutrality comments are duplicates — or come from suspicious sources". Recode . Retrieved October 4, 2019.
  15. ↑ Confessore, Nichalos (October 16, 2018). "New York Attorney General Expands Inquiry Into Net Neutrality Comments". The New York Times . Retrieved October 17, 2018.
  16. ↑ Collier, Kevin; Singer-Vine, Jeremy (December 8, 2018). "Millions Of Comments About The FCC's Net Neutrality Rules Were Fake. Now The Feds Are Investigating". Buzzfeed News . Retrieved December 8, 2018.
  17. ↑ Brimbaum, Emily (December 5, 2018). "FCC chairman acknowledges Russia interfered in net neutrality public comments". The Hill . Retrieved December 5, 2018.
  18. ↑ Brodkin, Jon (January 4, 2018). "FCC releases final net neutrality repeal order, three weeks after vote: With repeal officially published, FCC will soon face lawsuits". Ars Technica . Retrieved January 5, 2018.
  19. ↑ Griswold, Alison (December 14, 2017). "The first lawsuit to save net neutrality was announced minutes after the FCC voted to repeal it". Quartz. Retrieved December 14, 2017.
  20. 1 2 Shepherdson, David (February 22, 2018). "States refile lawsuits to block repeal of U.S. net neutrality". Reuters . Retrieved October 12, 2018.
  21. ↑ Schwartz, Matthew S. (February 1, 2019). "Net Neutrality Goes Back To Court". NPR . Retrieved October 4, 2019.
  22. 1 2 3 Lecher, Colin (February 1, 2019). "What we learned from net neutrality's big day in court". The Verge . Retrieved October 4, 2019.
  23. ↑ Brodkin, Jon (August 21, 2018). "Verizon throttled fire department's "unlimited" data during Calif. wildfire". Ars Technica . Retrieved October 4, 2019.
  24. ↑ Kelly, Makena (October 3, 2018). "Broadband industry groups sue California over net neutrality bill". The Verge . Retrieved October 3, 2018.
  25. ↑ Kang, Cecilia (September 30, 2018). "Justice Department Sues to Stop California Net Neutrality Law". The New York Times . Retrieved October 3, 2018.
  26. ↑ Kelly, Makena (October 26, 2018). "California strikes deal with FCC to delay state net neutrality law". The Verge . Retrieved October 26, 2018.
  27. 1 2 3 4 Patel, Nilay (October 4, 2019). "The Court Allowed The FCC To Kill Net Neutrality Because Washing Machines Can't Make Phone Calls". The Verge . Retrieved October 4, 2019.
  28. ↑ Robertson, Adi (October 1, 2019). "The FCC can repeal net neutrality, but it can't block state laws, says court". The Verge . Retrieved October 1, 2019.
  29. ↑ Romm, Tony (October 1, 2019). "Appeals court ruling upholds FCC's canceling of net neutrality rules". The Washington Post . Retrieved October 4, 2019.
  30. ↑ Kendall, Brent; McKinnon, John D. (October 1, 2019). "FCC Rollback of Net Neutrality Rules Is Partly Upheld by Appeals Court". The Wall Street Journal . Retrieved October 4, 2019.
  31. ↑ Shepardson, David (February 6, 2020). "U.S. appeals court will not reconsider net neutrality repeal ruling". Reuters . Retrieved February 6, 2020.
  32. ↑ Hussain, Suhauna (October 3, 2019). "Upholding FCC's repeal of net neutrality rules, court opens door for California to enforce its own". The Los Angeles Times . Retrieved October 4, 2019.
  33. ↑ Reardon, Marguerite (October 3, 2019). "The net neutrality battle lives on: What you need to know after the appeals court decision". CNet . Retrieved October 4, 2019.
  34. ↑ Wyrich, Andrew (October 3, 2019). "Net neutrality advocates say to remain wary of 'bad legislation' in wake of court's decision". The Daily Dot . Retrieved October 4, 2019.
  35. ↑ Cooper, Daniel (February 21, 2020). "FCC forced to ask for public feedback on net neutrality repeal". Engadget . Retrieved February 21, 2020.
  36. ↑ Klar, Rebecca (October 27, 2020). "FCC reaffirms order rolling back net neutrality regulations". The Hill . Retrieved November 1, 2020.

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