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.