Mozilla Re-Files Suit Against FCC to Protect Net Neutrality

https://blog.mozilla.org/blog/2018/02/22/mozilla-v-fcc-mozilla-re-files-suit-fcc-protect-net-neutrality/

by DiabloD3 • 8 years ago

467 62 8 years ago

blog.mozilla.org

mehrdadn• 8 years ago

the FCC’s decision to overturn the 2015 rules violates both federal law as well as harms internet users and innovators.

What was illegal about the FCC decision?

jamesgeck0• 8 years ago

From the filing[1]:

Mozilla seeks review of the Order on the grounds that it violates federal law, including, but not limited to, the Communications Act of 1934, 47 U.S.C. §§ 151 et seq., as amended, and the Telecommunications Act of 1996, and FCC regulations promulgated thereunder; abdicates the FCC’s statutory mandates; is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; and is otherwise contrary to law

1. https://ffp4g1ylyit3jdyti1hqcvtb-wpengine.netdna-ssl.com/wp-...

zootboy• 8 years ago

I don't know what arguments Mozilla is planning on using in this suit, but one could argue that the FCC is violating their mandate to promote competition in the broadband space.

SlowRobotAhead• 8 years ago

Mandates are't law though, right?

wyager• 8 years ago

How does net neutrality promote broadband provision competition?

matt4077• 8 years ago

The regulatory process requires agencies to make a reasonable effort to explain their decisions and to consider all stakeholders and relevant counter-arguments. This is codified in the Administrative Procedure Act.

Ultimately, the most relevant flaw in the FCC’s decision may come down to the following:

Broadband has to be defined as either an information service or telecommunications service. The first is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information,” while the second is “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

I’ll let you take a guess here and just say that to repeal net neutrality, the FCC had to engage in some rather weird semantic gymnastics to arrive at the answer it wanted. That may not hold up in court.

JumpCrisscross• 8 years ago

Broadband has to be defined as either an information service or telecommunications service

Pardon me legal ignorance. Why this dichotomy?

kakarot• 8 years ago

Just when I was on the verge of leaving Firefox over UI issues.

wildmusings3• 8 years ago

Given that the Supreme Court has previously upheld both of the FCC’s classifications of broadband under the Telecommunications Act of 1996, first as an “information service” and then as a “telecommunications service” (when Wheeler reclassified it to impose net neutrality), there is no way that they will strike down a return to the “information service” classification.

By a legal doctrine known as “Chevron deference”, the courts defer to regulatory agencies in choosing between plausible interpretations of the law, instead of choosing an interpretation themselves. From the text of the Act, it is not clear what broadband internet service is. If a “telecommunications service”, it is subject to the very extensive Title II requirements including common carriage. So while the FCC classified it as an “information service” in the early 2000s, it reclassified it as a “telecommunications service” in 2015 in order to impose net neutrality. Both of these classifications were challenged in court and survived scrutiny. Now the FCC has gone back to the “information service” classification. There is no reason to think that the court has changed its mind on the reasonableness of either interpretation of the act, so any suits challenging this would need to allege some procedural deficiency in how the FCC promulgated the new regulation. The plaintiffs are not likely to prevail.

rsingel2• 8 years ago

I would hesitate to say never. When the Supreme Court allowed the FCC to designate cable broadband as an info service (Title I) in 2005, the majority basically said the facts at the time make it plausible to call ISPs that way because, well, they offer email and webpages, but that even then the better interpretation was Title II. (Scalia famously said it was ridiculous to think ISPs weren't Title II).

So the courts could now say that Title I doesn't fit at all because they are basically just hired pipes. Chevron deference only goes so far - an agency can't call a river an ocean, for instance. So this FCC is making as much as they can of DNS and ISP caching in its Order to argue ISPs are not just data transporters.

And finally, on Chevron deference - one thing to remember: many conservatives hate it since it hands power to agencies over Congress. If this ever got to the Supreme Court, watch out for Neil Gorsuch, who will have to face the choice of party over his principle hatred of Chevron deference.

wildmusings3• 8 years ago

Scalia’s dissent was more nuanced and not all that favorable to net neutrality advocates. He said that the connection of the home to the network was a telecommunications service, over which an information service is provided. The routing and interconnection decisions, optimizations, and prioritizations made within the ISP could very plausibly have fallen under the information service aspect. Here are some excerpts suggesting just that:

Since the delivery service provided by cable (the broad-band connection between the customer’s computer and the cable company’s computer-processing facilities) is downstream from the computer-processing facilities, there is no question that it merely serves as a conduit for the information services that have already been “assembled” by the cable company in its capacity as ISP. This is relevant because of the statutory distinction between an “information service” and “telecommunications.” The former involves the capability of getting, processing, and manipulating information. §153(20). The latter, by contrast, involves no “change in the form or content of the information as sent and received.” §153(43). When cable-company-assembled information enters the cable for delivery to the subscriber, the information service is already complete. The information has been (as the statute requires) generated, acquired, stored, transformed, processed, retrieved, utilized, or made available. All that remains is for the information in its final, unaltered form, to be delivered (via telecommunications) to the subscriber.

This reveals the insubstantiality of the fear invoked by both the Commission and the Court: the fear of what will happen to ISPs that do not provide the physical pathway to Internet access, yet still use telecommunications to acquire the pieces necessary to assemble the information that they pass back to their customers. According to this reductio, ante, at 22–24, if cable-modem-service providers are deemed to provide “telecommunications service,” then so must all ISPs because they all “use” telecommunications in providing Internet functionality (by connecting to other parts of the Internet, including Internet backbone providers, for example).

[...]

Second, it is apparently possible to sell a telecommunications service separately from, although in conjunction with, ISP-like services; that is precisely what happens in the DSL context, and the Commission does not contest that it could be done in the context of cable. The only impediment appears to be the Commission’s failure to require from cable companies the unbundling that it required of facilities-based providers under its Computer Inquiry.

azernik• 8 years ago

A big part of this suit seems to rest on the Adminstrative Procedures Act - an argument to the administrative law process, rather than to the FCC's authority to make this decision. I think that's more likely to stick, but that's a delay rather than a halt - the FCC can always try again with the right procedure.

tzs• 8 years ago

Given that the Supreme Court has previously upheld both of the FCC’s classifications of broadband under the Telecommunications Act of 1996, first as an “information service” and then as a “telecommunications service” (when Wheeler reclassified it to impose net neutrality), there is no way that they will strike down a return to the “information service” classification.

When was the telecommunications service classification upheld by the Supreme Court. Last I remember is that there were some petitions asking the Court to look at it, but I don't recall the Court agreeing to do so, let alone actually ruling, and Google is not turning up anything.

wildmusings3• 8 years ago

Thank you for the correction. The DC Circuit is the one that heard that case, declining to overturn the FCC’s reclassification of broadband to a “telecommunications service”.

dragonwriter7• 8 years ago

Given that the Supreme Court has previously upheld both of the FCC’s classifications of broadband under the Telecommunications Act of 1996, first as an “information service” and then as a “telecommunications service” (when Wheeler reclassified it to impose net neutrality), there is no way that they will strike down a return to the “information service” classification.

That's inadequately reasoned. The fact that the Supreme Court found an application of the legal definition reasonable on the set of facts presented at one point in time and a different result of applying the same law reasonable on a different set of facts presented at a later time does not mean that a reversion to the older application at a yet later time will necessarily be upheld as consistent with the law based on the facts presented at that time.

By a legal doctrine known as “Chevron deference”, the courts defer to regulatory agencies in choosing between plausible interpretations of the law, instead of choosing an interpretation themselves.

Chevron deference is not unlimited deference.

mlindner3• 8 years ago

That's unfortunate. I had thought that at least Mozilla had people that understood BGP and network routing and why it's impossible for an ISP to treat all data equally and also maintain good QoS. I guess this is just them advocating for themselves as it reduces their costs.

IntronExon• 8 years ago

For those of us who don’t understand, I’d love to hear your explanation of the impossibiliy you’re claiming.

mlindner3• 8 years ago

What is the metric for determining what data gets through when there is more data than what the transiting connection can handle? The internet is not one single network. It's a series of interconnected network that are operated under different policies and owned by various companies.

I'm assuming you have an understanding of BGP and peering. When peering is established between companies there's a general understanding that peering is free if the data flow in each direction is approximately equal. It's a mutual benefit so both engage in the peering. If however data is predominantly flowing in one direction (early Netflix for example) then companies are eating costs (Netflix's costs) to continue to provide Netflix's data to their customers. If you force ISPs to peer in these sorts of arrangements (Net Neutrality) you are shifting costs from Netflix on to the ISPs. ISPs then need to charge their customers more even if they are not customers of Netflix. This was eventually fixed historically by forcing Netflix to to pay for peering despite the large outrage at the time about Comcast "throttling Netflix" and then "forcing them to pay to stop throttling" which misrepresented what was going on.

This is just one example.

urda• 8 years ago

The burden of proof is on you, please provide it.

mlindner3• 8 years ago

See my other reply.

amerine• 8 years ago

Thank you, Mozilla.

ep103• 8 years ago

Just saying, the best way to thank Mozilla, is to make FireFox your default browser. Firefox for Android is pretty good too.

CaptSpify• 8 years ago

Firefox for Android lets you install adblockers, and umatrix. Mobile pages load fast again!

chapill3• 8 years ago

I wonder who's funding Mozilla in this proxy fight? They seem to be struggling just to stay alive with their core product, Firefox. I can't see how they can justify fighting expensive legal battles on a whim to shareholders.

staplers2• 8 years ago

Are you joking?

"-- Mozilla booked $323 million in royalties in 2014, up about 7% from the year earlier."

chapill3• 8 years ago

Are you? 2014 is the year they signed a big deal with Yahoo. Of course they did well that year.

bzbarsky3• 8 years ago

The only shareholder the Mozilla Corporation has is the non-profit Mozilla Foundation.

The Foundation does not have shareholders. It does have a board that it presumably needs to justify their actions to. Those actions presumably need to align with https://www.mozilla.org/en-US/about/manifesto/ and https://www.mozilla.org/en-US/mission/ better than other uses of the same money to be justified.

So the real question is whether there is something that Mozilla be doing to achieve the goals those two documents described that would be a better investment of money and that it's not already doing. Do you know of something offhand?

[Disclaimer: I work for the Mozilla Corporation, on Firefox, and was not involved in the decision to file this lawsuit in any way.]

ocdtrekkie6• 8 years ago

I would much rather Mozilla be investing money in breaking the global Google monopoly than bothering with some regional peasantry like the carriers. Particularly with initiatives like AMP (and now AMP4Email), we are in a very serious place where one company is dictating the standards by which the Internet works... while simultaneously refusing to make them open standards with governance outside of Google.

Obviously, they're using their Search and Mail monopolies to push those formats, and speaking of search, we've been talking a lot about where our information comes from online and how accurate it is. A better Internet means we need to do better at that, and we need alternatives than a global centralized search engine operated by a corporation with a significant political agenda.

Sylos• 8 years ago

Firefox could certainly have more market share, but Mozilla is certainly not short on money right now either.

turc16562• 8 years ago

According to Mozilla's legal filing, they are claiming it violates the Communications Act of 1934 and the Telecommunications Act of 1996 because the FCC's decision was...wait for it..."arbitrary, capricious, and an abuse of discretion".

Sounds like they are basically throwing a temper tantrum and grasping at straws. Their argument essentially amounts to "We believe this ruling is so bad that it can't possibly be allowed to go through. This is a clear violation of their statutory mandate."

I find arguments like this truly astounding because no one was claiming they were violating federal law before they implemented the net neutrality regulations. To me, this is eerily similar to the recent DACA ruling where the federal judge required that DACA must be kept in force for the time being while everything is being sorted out. But the reason the judge gave was pretty telling - "The question before the court is thus not whether defendants could end the DACA program, but whether they offered legally adequate reasons for doing so." That sounds pretty much exactly like the argument we are seeing here. In fact, the author of the CNN article I grabbed that judge's quote from also uses the same language about Trump's move on DACA being "arbitrary and capricious".

Searching these phrases online you will find this all relates to the Administrative Procedure Act of 1946. There are two types of judicial review under this act - the arbitrary and capricious review and the substantial evidence review. Obviously, based on these filings, this would fall under the former. That does require a reasonable explanation for the decision. However, given the nature of this topic the justification is obvious - that a huge portion of the country supports the elimination of DACA. That a judge would ignore this is unconscionable. The only other option under this law is to go after the decision as a violation of the separation of powers. However, if it is ruled as such, that also means that Obama's 2012 creation of the DACA program was also a violation of the separation of powers and thus the DACA program would need to be shut down.

Whether you are in favor of net neutrality or against it - in favor of DACA or not, the law needs to be the law. All of this judicial nonsense reeks of political games. And every time judges uphold stuff like this based on these ridiculous, spurious arguments, the Rule of Law continues to degrade and our nation suffers.

civilitty• 8 years ago

The Administrative Procedure Act of 1946 is the law. Period. It is a core foundation for the modern regulatory framework in the United States, including how fast regulations can be changed and the procedures that need to be followed, regardless of the agency's Congressional mandate.

The reason judges are using the law to overturn executive actions so much more than before is because no previous administration has been so arbitrary and capricious in their actions.

turc16562• 8 years ago

If you are referring to DACA - it's not arbitrary and capricious considering this was a hot button election issue and a large number of Americans support this change. If you are referring to net neutrality, Ajit Pai gave months of notice that this was being discussed (so it was not on a whim) and provided a lengthy explanation as to the reasons the decision was made. You might disagree with the reasons, and that's totally fine and understandable. But to call it arbitrary and capricious is kind of ridiculous. It's most likely simply a political standpoint you don't support and thus want to have the courts interject in the hopes they agree with you and find the reasoning flawed. This is legislating from the bench, because it effectively allows them to declare a line of political reasoning insufficient. It is a particularly insidious practice that effectively allows federal judges to step in and override something they disagree with and it's something they've gotten into a really nasty habit of doing far too often.

I will taper my argument with one point - if the recent investigation into Pai that was just announced yields any hard evidence of corruption or anything like that then I would support overturning this ruling on the grounds that his vote was influenced by outside forces. He should then be removed (and possibly go to jail depending on what the evidence shows) and the FCC could vote on this issue again with a new 5th member and we would see if they vote in the same way or not.

boomboomsubban• 8 years ago

...this is a clear violation of their statutory mandate."
I find arguments like this truly astounding because no one was claiming they were violating federal law before they implemented the net neutrality regulations

First, if they are in clear violation of their mandate, they are breaking the law.

Second, yes, there were people claiming they were breaking the law before the 2015 net neutrality regulations. They were proved correct in the court, which led to the 2015 regulations. This fight has been going on in the courts for over a decade, and there have been numerous attempts to pass a new law dealing with it. Unless a new law is passed, the decision has always been with the courts.

TriStarGod• 8 years ago

Just donated to Mozilla. Even if Mozilla wins, Trump's FCC may not enforce it. Its just like how ACA is being enforced in Illinois. Blue Cross is illegally selling insufficient health insurance.

Mozilla Re-Files Suit Against FCC to Protect Net Neutrality

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