Tag Archives: mozilla v fcc

Oral Arguments in Mozilla v. FCC

On February 1, 2019, the Court of Appeals for the DC Circuit heard oral arguments in Mozilla v. FCC, the case challenging the FCC’s decision to abandon its order protecting net neutrality. In the more than four hour oral arguments, the court explored a variety of challenges and practical concerns, including those related to administrative law, industry actions and public safety. The three-judge panel is comprised of Judge Patricia Millet, Judge Robert Wilkins and Judge Stephen Williams (NB: Williams dissented from the 2016 opinion upholding the FCC’s 2015 Open Internet Order).

The FCC has a long history in the area of net neutrality, including the two most recent rulemakings. In 2014, the FCC issued a notice of proposed rulemaking, in response to the DC Circuit overturning its 2010 net neutrality rules because the court found that those rules amounted to common carriage. As a result of this rulemaking, in 2015 the FCC issued its Open Internet Order, reclassifying broadband under Title II, subjecting broadband to “common carriage” rules and setting forth prohibitions against blocking, throttling and paid prioritization. In 2017, the FCC, under new leadership from Chairman Pai, issued another notice of proposed rulemaking. In December 2017, the FCC voted 3-2 to eliminate the 2015 net neutrality protections. Immediately following this decision, Internet companies, public interest groups, and consumers, as well as state governments and agencies initiated litigation. ARL joined with other library and higher education associations in filing an amicus brief.

Petitioners in the case have relied on several arguments, including that the FCC violated the Administrative Procedure Act, by failing to engage in reasoned decision-making and instead acting in an arbitrary and capricious manner.

One portion of oral arguments centered on the practical consequences the FCC’s 2017 repeal of net neutrality rules has on public safety. As noted in the brief of government petitioners, when Verizon throttled the data plan of a fire station during the Mendocino Complex fire in California, the largest wildfire in state history. The Santa Clara County counsel noted that the FCC is required by to consider public safety, yet failed to address the impacts that rules that do not prohibit blocking and throttling have. Public safety agencies, such as fire departments or public health agencies, could be blocked or throttled from sending emergency messages. While the FCC’s 2017 order would allow for the FTC to engage in post-hoc remedies, these would be insufficient in addressing public safety concerns because such remedies occur only after the emergency is done.

Another issue that has been hotly debated is whether the FCC’s preemption language is valid, given that it has abdicated its authority to regulate broadband. As petitioners and amici have pointed out, the FCC cannot claim it does not have the authority to regulate broadband, but then claim that it can prevent states from doing so. Additionally, during oral arguments, Judge Wilkins linked the preemption issue to public safety issues, since broad preemption could prevent states from even protecting its citizens from throttling during emergencies—such as in the case of California wildfires. FCC counsel did not answer whether a state could implement a law prohibiting the throttling of firefighters’ data without running afoul of the FCC’s preemption provisions, instead arguing that the transparency rule will prevent bad behavior on the part of broadband providers. However, the FCC counsel conceded that as long as the provider disclosed throttling or blocking practices in compliance with the transparency rule, the FTC would not be able to regulate because there would be no deceptive practice.

The FCC asserted that the FCC repealed the prior net neutrality rules because of a “chilling effect” on investment into broadband. A less strict regulatory regime would promote broadband investment, according to the FCC. Judge Millet pressed the FCC on this point, noting statements that broadband providers previously told investors that the net neutrality regulations did not harm investment.

The FCC appeared to rely on Supreme Court precedent in Brand X, which affirmed an earlier FCC’s decision to classify broadband under Title I, rather than under Title II. Indeed, Judge Millet pressed Petitioners’ counsel on this point, asking how the DC Circuit could come to a different conclusion than the one reached by the Supreme Court. Petitioners’ counsel responded that the nature of broadband service has changed since Brand X was decided in 2005.

While predicting the outcome of a particular case can often be difficult, petitioners in the case presented strong arguments—both legal and practical.

 

Government Petitioners’ Brief Points Out Verizon Throttling of Fire Department Battling Largest Fire in California History

On August 20, 2017, petitioners challenging the FCC’s abandonment of net neutrality protections in Mozilla v. FCC filed their initial briefs. Coverage of Mozilla’s joint brief with other non-government petitioners (including companies and public interest groups) is available here and here. This blog post focuses on the brief filed by government petitioners, which include 22 states (New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington), the District of Columbia, the County of Santa Clara, Santa Clara County Central Fire Protection District, and the California Public Utilities Commission. These states represent over 165 million people, approximately half of the United States population.

The brief of the government petitioners make two primary arguments: 1) that the 2017 Order is arbitrary and capricious and failed to take into account harm to consumers, including public safety issues; and 2) the FCC did not have valid authority to preempt state and local laws from enacting their own net neutrality protections.

The highlight of this government petitioners’ brief focuses on clear and real examples of the harms that absence of net neutrality protections will have on safety, health and the public interest. While the FCC’s 2017 reversal of net neutrality protections relies on voluntary commitments, Internet companies have demonstrated that they will prioritize their own interests over the public’s:

BIAS [Broadband Internet Access Service] providers have shown every indication that they will prioritize economic interests, even in situations that implicate public safety. For example, a BIAS provider recently throttled the connection of a County Fire emergency response vehicle involved in the response to the largest wildfire in California history and did not cease throttling even when informed that this practice threatened public safety (emphasis added).

In this case, while the County was fighting the Mendocino Complex Fire—the largest fire in California’s state history—it experienced throttling by its ISP, Verizon. The addendum to the government petitioners’ brief includes a declaration by Santa Clara County Fire Chief, Anthony Bowden, who notes that the fire department relies on “Internet-based systems to provide crucial and time-sensitive public safety services. The Internet has become an essential tool in providing fire and emergency response, particularly for events like large fires, which require the rapid deployment and organization of thousands of personnel and hundreds of fire engines, aircraft, and bulldozers. During these events, resources are marshaled from across the state and country—in some cases even from other countries” and management of these resources depends on the Internet.

As Bowden explains, the unit facilitating resources “typically exchanges 5-10 gigabytes of data per day via the Internet using a mobile router and wireless connection. Near real-time information exchange is vital to proper function . . . Even small delays in response translate into devastating effects, including loss of property, and, in some cases, loss of life.” As a result, high-speed Internet is critical in addressing these fires.

Despite the fact that Santa Clara County Fire believed it had purchased an “unlimited” data plan, Verizon throttled the County’s usage “and data rates had been reduced to 1/200, or less, than the previous speeds.” When employees of Santa Clara County Fire e-mailed with Verizon, requesting the throttling be lifted for public safety purposes:

Verizon representatives confirmed the throttling, but rather than restoring us to an essential data transfer speed, they indicated that County Fire would have to switch to a new data plan at more than twice the cost, and they would only remove throttling after we contacted the Department that handles billing and switched to the new data plan.

Indeed, in the e-mail exchange attached as an exhibit in the addendum, a reported “side by side comparison a crew members personal phone using Verizon was seeing speeds of 20MBps/7Mbps. The department Verizon device is experiencing speeds of 0.2Mbps/0.6MBps, meaning it has no meaningful functionality.”

In another e-mail exchange questioning why Verizon was throttling the Santa Clara County Fire when the County believed it had purchased unlimited data, a Verizon manager replied, “Verizon has always reserved the right to limit data throughput on unlimited plans. All unlimited data plans offered by Verizon have some sort of data throttling built-in.”

While Verizon’s response to the Santa Clara County Fire Department in the midst of fighting the largest fire in California history as an extreme example of an ISP acting in self-interest, there are other examples of concerns for other state and local government seeking to serve the health and safety needs of its residents. For example, the government petitioners’ brief points to California’s updates to manage its energy grid to balance load, manage congestion and satisfy reliability standards.

Another example cited by the County of Santa Clara is its “web-based emergency operations center to facilitate coordination internally with other agencies and with first responders in case of emergency.” It uses a web-based public alert system to notify the public about emergencies such as evacuation orders or disease outbreaks and “Significant delays from blocking, throttling, or deprioritization could impede effective notification and jeopardize safety in public-health emergencies.” The County’s hospital also uses web-based systems that are latency-sensitive, including development of expanded telemedicine capabilities which will allow doctors to “perform triage and improve outcomes in time-sensitive situations (such as strokes or vehicular accidents) where immediate diagnosis can mean the difference between life and death.” In developing these improved systems for public health and safety, the County of Santa Clara notes that it invested substantial resources, including over a million dollars in its medical records system, and did so in reliance on the FCC’s protection of an open Internet.

Ultimately, the government petitioners’ brief highlights the ways that state and local government rely on an open Internet to serve the public, health and safety needs of its residents. As the brief notes, the FCC erred in assuming

that providers’ voluntary commitments coupled with existing consumer protection laws provide sufficient protection. The Commission offered no meaningful defense of its decision to uncritically accept industry promises that are untethered to any enforcement mechanism. Nothing in the order would stop a BIAS provider from abandoning its voluntary commitments, revising its Transparency Rule disclosures, and beginning to block, throttle, or engage in paid prioritization, subject only to the Transparency Rule’s limited disclosure requirements—leading to the very harms to consumer interests and public safety that the Commission’s long-standing commitment to protecting the open Internet was intended to prevent.

Mozilla, Internet Companies, Public Interest Groups and Other Petitioners File Brief in Net Neutrality Case

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.