Mozilla and other digital advocacy companies filed a lawsuit in August alleging the FCC had unlawfully overturned 2015’s net neutrality rules, by among other things “fundamentally mischaracteriz[ing] how internet access works.” The FCC has filed its official response, and as you might expect it has doubled down on those fundamental mischaracterizations.
The Mozilla suit, which you can read here or embedded at the bottom of this post, was sort of a cluster bomb of allegations striking at the FCC order on technical, legal, and procedural grounds. They aren’t new, revelatory arguments — they’re what net neutrality advocates have been saying for years.
There are at least a dozen separate allegations, but most fall under two general categories.
- That the FCC wrongly classifies broadband as an “information service” rather than a “telecommunications service.” There’s a long story behind this that I documented in the Commission Impossible series. The logic on which this determination is based has been refuted by practically every technical authority and really is just plain wrong. This pulls the rug out from numerous justifications for undoing the previous rules and instating new ones.
That by failing to consider consumer complaints or perform adequate studies on the state of the industry, federal protections, and effects of the rules, the FCC’s order is “arbitrary and capricious” and thus cannot be considered to have been lawfully enacted.
The FCC’s responses to these allegations are likewise unsurprising. The bulk of big rulemaking documents like Restoring Internet Freedom isn’t composed of the actual rules but in the justification of those rules. So the FCC took preventative measures in its proposal identifying potential objections (like Mozilla’s) and dismissing them by various means.
That their counter-arguments on the broadband classification are nothing new is in itself a little surprising, though. These very same arguments were rejected by a panel of judges in the DC circuit back in 2015. In fact, recently-appointed Supreme Court Justice Brett Kavanaugh distinguished himself on that very decision by being wrong on every count and receiving an embarrassing intellectual drubbing by his better-informed peer, Judge Srinivasan.
As for the arbitrary and capricious allegation, the FCC merely reiterates that all its decisions were reasonable as justified at the time. Mozilla’s arguments are not given serious consideration; for example, when Mozilla pointed out that thousands of pages of comments had been essentially assumed by the FCC to be irrelevant without reviewing them, the FCC responds that it “reasonably decided not to include largely unverified consumer complaints in the record.”
These statements aren’t the end of the line; there will be more legal wrangling, amicus briefs, public statements, amended filings, and so on before this case is decided. But if you want a good summary of the hard legal arguments against the FCC and a vexing dismissal thereof, these two documents will serve for weekend reading.
The Mozilla suit:
The FCC’s counter-arguments: