Mozilla Corp. v. FCC, 940 F. 3d 1 (D.C. Cir., 2019) was a ruling the United States Court of Appeals for the District of Columbia Circuit in 2019 related to net neutrality in the United States. The case centered on the Federal Communications Commission (FCC)'s decision in 2017 to rollback its prior 2015 Open Internet Order, reclassifying Internet services as an information service rather than as a common carrier, deregulating principles of net neutrality that had been put in place with the 2015 order. The proposed rollback had been publicly criticized during the open period of discussion, and following the FCC's issuing of the rollback, several states and Internet companies sued the FCC. These cases were consolidated into the one led by the Mozilla Corporation. The Appeals Court ruled in favor of the FCC in October 2019, relying on the Supreme Court decision of National Cable & Telecommunications Ass'n v. Brand X Internet Services (2005) that the FCC has such authority to reclassify Internet services, and thus allowed the rollback. However, the Court ruled against the FCC in attempting to block state- and local-level laws that regulated the Internet, enabling states to pass net neutrality legislation.
Background Net neutrality in the United States has been of concern since the Internet became open to public use through Internet service providers (ISPs). Net neutrality broadly encompasses the idea that all data traffic on the Internet should be treated equal, counter to past and planned actions of ISPs to offered tiered service plans that block or throttle access to selected sites at lower payment tiers, among other provisions. Within the United States, proponents of net neutrality, which typically includes Democrats and large technology companies, believe it is necessary to prevent ISPs from blocking access to Internet services or to throttle the connection to these services as to maintain an open flow of information across the Internet without discrimination. Opponents of net neutrality, principally Republicans and ISPs, argue that the ability to offer tiered rates of service would help promote competition in providing Internet service across America, and enforced net neutrality regulations would stifle growth. A central facet of the debate around net neutrality is how ISPs are classified under the Communications Act of 1934. Under this act, they may either treated as "information service" under Title I of the Act, or as a "common carrier service" under Title II. Common carrier classification under Title II would mean that the FCC, which is granted authority to oversee communication services in the United States, could apply regulations to ISPs, which would include enforcing the principles of net neutrality. But under Title I, the FCC would not have significant authority to regulate ISPs. The FCC's authority to classify ISPs in this matter was upheld in the Supreme Court case National Cable & Telecommunications Ass'n v. Brand X Internet Services in 2005, based principle on the Chevron deference for the judiciary to allow federal agencies' interpretations of ambiguous Congressional language. With Brand X's ruling left in place the FCC's decision to classified cable-based ISPs as information services under Title I.
Case background The FCC in the early 2010s, while under the Barack Obama administration, were favorable to implementing net neutrality positions. The first FCC Commissioner in Obama's term, Julius Genachowski, was a strong proponent of net neutrality. Tom Wheeler, appointed as the new FCC Commissioner in 2013, had stated he was for an open Internet but favored the notion of "fast lanes" for some traffic, but eventually agreed to full net neutrality goals as to maintain the goals of an open Internet. The FCC introduced the FCC Open Internet Order 2010 that enshrined principles of net neutrality. The order was challenged by ISPs, and in 2014, the DC Appeals Court ruled in Verizon Communications Inc. v. FCC that the FCC did not have the authority to set net neutrality requirements on ISPs unless they were classified as a common carrier. This led the FCC to issue a new Open Internet Order in 2015 that not only continued to enshrine net neutrality principles but also classified ISPs as Title II common carriers. Again, ISPs sued the FCC over this. In 2016, the DC District Court ruled in United States Telecom Ass'n v. FCC in favor of the FCC and upholding the reclassification of ISPs and the neutrality rules. With Donald Trump becoming president in 2016, Ajit Pai, a current member of the FCC was elevated to the new FCC Commissioner. Pai was a strong critic of the FCC having oversight of net neutrality prior to this position, believing that the FCC should allow ISPs to self-regulate, and that if there was to be regulation on net neutrality, it needed to come from Congress. With Pai as Commissioner, and with Republican-appointed members outnumbering the Democrat-appointed ones 3–2, Pai led the FCC to propose a rollback of the 2015 Open Internet Order. By May 2017, the FCC voted to proceed the process of rolling back the 2015 Order by issuing a public notice of the FCC's intent of the rule change, titled "Restoring Internet Freedom". In addition to the rollback, the proposed rule would prevent states and local governments from passing legislation on net neutrality. The proposed changed drew heavy criticism from proponents of net neutrality, with several organized activism events created to draw the public's attention to this. During the public commenting period, running from May to August 2017, the FCC received more than 21 million comments related to the change. Analysis of the comments following their release after the public period found a near majority of these opposed to the rule change, even after accounting for potential fraud that had been discovered. Despite the public stance on the rule change, the FCC voted on December 14, 2017, to enforce the rollback.
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