The litigation around the FCC’s decision in 2017 to abandon net neutrality protections is currently before the D.C. Circuit in the case captioned as, Mozilla v. FCC. Briefs by petitioners challenging the FCC’s 2017 Order were filed on Monday, August 20. The first brief (“non-government petitioners”) was filed jointly by Mozilla, Vimeo, Public Knowledge, Open Technology Institute, National Hispanic Media Coalition, NTCH, Benton Foundation, Free Press, Coalition for Internet Openness, Etsy, the AD Hoc Telecom Users Committee, Center for Democracy and Technology and Encompass and a summary of its arguments is provided below. The second brief, which will be covered in separate blog post, was filed by government petitioners, consisting of 22 states, the District of Columbia, County of Santa Clara, Santa Clara County Central Fire Protection District and the California Public Utilities Commission.
The non-government petitioners include a wide range of affected stakeholders: Internet companies, broadband providers, Internet consumers and public interest groups.
Mozilla’s brief points out that the FCC’s 2015 Open Internet Order was the result of a lengthy notice of proposed rulemaking and careful consideration, “Yet in the aftermath of the 2016 presidential election, the FCC did an abrupt about-face, comprehensively embracing the BIAS [Broadband Internet Access Service] providers’ objections this Court rejected in USTA and Verizon, revoking the telecommunications service designation of fixed and mobile BIAS, repealing all the rules governing BIAS provider conduct, and disavowing every source of authority for such rules.” Indeed, as numerous critics have noted, the 2017 decision by the FCC reversing its early Open Internet Order seemed to be a predetermined outcome.
Mozilla’s brief makes several arguments: 1) the FCC’s Order mischaracterizes the way the Internet works; 2) the FCC impermissibly renounced its enforcement authority; and 3) the FCC’s repeal of the 2015 Open Internet Order was arbitrary and capricious, ignoring the reasoned decision-making required by an agency.
Pointedly, Mozilla’s brief notes: “In 2016, this Court upheld the rules in their entirety. In 2017, a new FCC undid them, again in their entirety, on a record that had changed little, if at all.” Additionally, “One after another, the FCC reversed virtually all of the 2015 Order’s hundred-plus factual findings, proclaiming wrong what had been found to be right in 2015 and upheld as right in 2016. The abrupt about-face was not adequately reasoned.”
In arguing the arbitrary and capricious nature of the FCC’s reversal of the 2015 Open Internet Order, Mozilla’s brief points out that the FCC “erroneously excluded consumer complaints”* resulting in “skewing the record in favor of its preferred outcome and subverting the rulemaking process.” Such behavior contravenes the Administrative Procedures Act (APA) which requires agencies to examine relevant data and provide reasoned explanations; “an agency cannot close its eyes to evidence in its possession on which it chooses not to rely.”
The FCC’s complete abandonment of net neutrality protections ignored not only the lengthy and detailed record in past proceedings, but also the comments submitted in its 2017 notice of proposed rulemaking. Various amici for the petitioners, whose briefs will be due on Monday, August 27, will also point to the arbitrary and capricious decision-making by the FCC.
*A representative (but not comprehensive) list of companies, organizations and governments is listed on the first several pages. Several library organizations (including ARL, ALA, and AALL) along with city governments, state governments, public interest groups and companies, are included.