WASHINGTON, February 2, 2019 — Network Neutrality once again took center stage Friday as the Federal Communications Commission found itself defending its repeal of Obama-era Open Internet rules before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.
Friday’s oral argument was the most recent of many partisan clashes between the advocates of the FCC position under former Chairman Tom Wheeler, a Democrat, and that of current Chairman Ajit Pai, a Republican. Now, the agency is defending its December 2017 Pai rules before the D.C. Circuit Court of Appeals.
On a 2-1 vote in June 2016, a three-judge panel of the appeals court upheld the February 2015 Wheeler net neutrality rules. That decision was reviewed en banc by the entire appeals court, and upheld in May 2017 (see below).
Following the 2016 presidential election and the shift from majority-Democrat to a majority-Republican FCC, Pai announced that the agency would re-reclassify broadband as an “information service,” rather than the “telecommunications service” under the Wheeler rules.
The lawsuit, led by the Mozilla Foundation and others seeking to judicially overturn the 2017 Pai rules, was joined by more than 36 pro-Network Neutrality interest groups and entities, including the California Public Utilities Commission, Public Knowledge, and the Benton Foundation.
Legal arguments about the definitions of ‘telecommunications’ and ‘information’ services
FCC General Counsel Thomas Johnson spent much of the four-hour oral argument session trying to convince judges that the FCC was correct in its decision that broadband internet did not fall under the legal definition of a “telecommunications service” — “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.”
Instead, he argued that broadband was an “information service,” defined under U.S. law as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”
When Circuit Judge Patricia Millett — an appointee of President Barack Obama — noted that the inclusion of the phrase “via telecommunications” in the latter definition implied that an “information service” is something offered in addition to the transmission of information, Johnson suggested that broadband was an “information service” because providers offer Domain Name System services to allow users access to remote services by way of a domain name (e.g. Wikipedia.org) rather than by a hard-to-remember Internet Protocol address.
“DNS, for example, it generates queries to other servers, it stores and retrieves domain name information, it translates domain name information that is provided by the user into an IP address and back,” Johnson said.
But Millett remained skeptical and continued to press Johnson on why telephone service, which she noted “is constantly used to acquire information and share information,” is still considered a “telecommunications service” for regulatory purposes.
“It seems to be the exact same functionality, but one is voice and one is typing,” she said.
Did the FCC’s decision to lift bans on blocking and throttling affect public safety?
Another matter of contention during Friday’s arguments was whether the FCC’s ending of a ban on blocking or throttling of internet traffic fell afoul of the commission’s requirement to consider the impact of its rules on public safety.
This issue was raised by Danielle Goldstein, the attorney representing Santa Clara County, California, which joined the suit after firefighters responding to last year’s wildfires saw their internet access throttled by Verizon.
Noting that the FCC’s authority to preempt state and local laws regulations does not absolve it from its responsibility to consider the public safety impact of its rulings, Goldstein said: “The FCC can’t fail to address public safety, especially in an order that purports to preempt state and local government’s ability to fill that regulatory gap,”
When Johnson suggested that the burden of proving harm from the regulations would rest with public safety agencies, Millett took on an irate tone as she interrupted him: “Why is the burden on them?” she asked.
“The statute repeats again and again that public safety is an important goal, you had comments [from the public] expressing concerns, a lot of them. It seems like you have a statutory obligation, you had a lot of comments, a serious issue that should have been addressed by the commission in the order.”
Judge Robert Wilkins, another Obama appointee, noted that the broad language the FCC used in its reclassification order seemed to prohibit a state from restricting broadband carriers’ ability to throttle service to public safety personnel like firefighters.
“Your order would seem to prohibit that [hypothetical law] because your order is written very broadly,” Wilkins said. “Doesn’t it say that basically all state and local regulations with respect to broadband are preempted?”
While Williams did not directly answer Wilkins’ question, he said the FCC was not trying to impact public safety functions, adding that whether a particular state law would be preempted “would depend on the facts of that particular case.”
Further questions about whether the Obama-era rules stymied infrastructure investment
Johnson also had trouble convincing Millett that the FCC’s claim that the Obama-era rules stymied infrastructure investment by broadband carriers was accurate, after she pointed out that providers had told investors the exact opposite of the FCC’s claim.
After Johnson called the providers’ statements “ambiguous,” Millett interjected again: “What is ambiguous about, ‘it’s not going to affect us, we’re going to keep going ahead [with investment]?’” she asked, adding that companies’ statements to investors “have to be true.”
“It’s almost like someone doing something under oath. That’s pretty good evidence, if there’s a penalty if they’re lying or even engaging in misleading puffery,” she said.
Only the latest of many legal maneuverings regarding net neutrality
The third judge on the panel considering Mozilla Foundation v. FCC is Senior Judge Stephen Williams, who dissented from the 2-1 majority that ruled for the Wheeler FCC in the 2016 case US Telecom v. FCC.
The two other judges in that case, David Tatel and Sri Srinivasan, were also Democratic appointees. When the matter went for an en banc review, Tatel and Srinivasan penned the majority opinion against overturning the panel’s decision.
Of the 11 full-time judges on the court at that time, eight participated in the review. Most notable were the two judges who dissented from denying the review: Janice Rogers Brown and Brett Kavanaugh, each of whom penned extensive opinions. Other than Tatel and Srinivasan denying review, and Brown and Kavanaugh favoring review, the positions of the other four judges who participated were not released — other than the fact that a majority denied review.
While the decision denying review was considered a minor victory by advocates of net neutrality, at that time the Pai FCC was already deep into its reconsideration of the Wheeler regulations. The agency effectively under a 180 degree turnabout — lifting the Wheeler rules and effectively eliminating all net neutrality protections except for transparency rules — in December 2017.
It is that new rule-making that is the subject of the new three-judge panel’s current judicial review of FCC regulations.
Democrats Mourn Loss of Net Neutrality, But Industry Supporters Call it a New Day
WASHINGTON, June 12, 2018 – As the Federal Communications Commission’s repeal of Obama-era network neutrality rules took effect Monday, Democrats and net neutrality advocates vowed to continue the effort to use a Congressional Review Act resolution to roll back the new FCC rules.
“There will be no eulogy today for net neutrality,” said Sen. Ed Markey, D-Mass., a longtime network neutrality advocate and a member of the Senate Commerce Committee.
“The FCC will not have the last word when it comes to net neutrality, the American people will,” he said. “The fight to restore net neutrality rules has new urgency today and moving forward as we continue to work in the House of Representatives to repeal the FCC’s terrible decision.”
Markey urged House Speaker Paul Ryan, R-Wis., to call for a floor vote on a companion bill to the CRA resolution passed by the Senate last month. The CRA measure, if it passed both chambers and were signed by the president, would void the laissez-faire “regulations” promulgated by the FCC in December 2017, under agency Chairman Ajit Pai.
‘An overwhelming majority of Americans’ support net neutrality, say Democratic legislators
The sponsor of that companion CRA bill, Rep. Mike Doyle, D-Pa., noted that “an overwhelming majority of Americans” support network neutrality despite the FCC’s refusal to follow public sentiment, but that it was “still possible” to save the policy by passing his resolution.
“The Senate has voted to overturn the FCC order that killed off net neutrality,” Doyle said. “Now the House must do the same.”
Senate Minority Leader Chuck Schumer, D-N.Y., slammed Ryan’s refusal to bring the Markey-Doyle resolution to the House floor.
“By refusing to bring up the Senate-passed resolution to restore net neutrality, which passed the Senate by a powerful bipartisan vote, House Republican leaders gave a green light to the big ISPs to charge middle-class Americans, small business owners, schools, rural Americans, and communities of color more to use the internet,” Schumer said, adding that the entire Senate Democratic Caucus had sent Ryan a letter urging him to move Doyle’s bill forward.
Schumer said that Republicans, except of the three GOP Senators who sided with the Democrats, were choosing large corporations and special interests over American families.
“Every Republican who opposed this vote will own any and all of the damaging consequences of the FCC’s horribly misguided decision,” he warned.
Pai publishes an op-ed arguing that the ‘Restoring Internet Freedom Order’ will restore internet freedom
Republican FCC Chairman Ajit Pai defended his agency’s repeal of Obama-era network neutrality rules in an op-ed for C-Net. He said the “Restoring Internet Freedom Order” will only improve the internet for users.
“Under the Federal Communications Commission’s Restoring Internet Freedom Order, which takes effect Monday, the internet will be just such an open platform. Our framework will protect consumers and promote better, faster internet access and more competition,” Pai wrote.
Pai attempted to bolster the FCC’s decision through claims that the new regulations introduces stronger transparency laws and hence more protection for the consumer.
He also lauded his agency passing power to the Federal Trade Commission for enforcement actions.
“Our approach includes strong consumer protections,” Paid said. “For example, we empower the Federal Trade Commission to police internet service providers for anticompetitive acts and unfair or deceptive practices. In 2015, the FCC stripped the FTC – the nation’s premier consumer protection agency – of its authority over internet service providers.
“This was a loss for consumers and a mistake we have reversed. Starting Monday, the FTC will once again be able to protect Americans consistently across the internet economy, and the FCC will work hand-in-hand with our partners at the FTC to do just that.”
Internet Innovation Alliance on defending the need for new laws on neutrality and privacy
The Internet Innovation Alliance, a coalition of business and non-profit organizations under leadership of Former Congressman Rick Boucher, D-Va., also defended the new laws.
The IIA issued a statement of support for today’s decision, calling it “the right decision” for consumers, investors, and “for the internet itself, as the internet will once again be subject to the rules under which it grew and flourished for nearly 20 years.”
Despite expressing support for the FCC’s rollback of Title II regulations, the IIA’s statement also addressed fears that the repeal of net neutrality —will empower internet service providers to discriminate against certain websites or services.
“But as grateful as we are for the Commission’s action and today’s implementation, we cannot rest here. The broadband internet is too important to our national life,” read the statement.
“We once again call on Congress to pass, this year, a law protecting the core principles of an open internet – no blocking, no throttling, no censorship, no unfair discrimination based on online content – and including robust consumer privacy protections that apply to all entities in the internet ecosystem and no matter how consumers access the internet.
“Only that action can settle the issue permanently and ensure that the principles of a truly open internet will have the force of statutory law,” IIA said.
(Photo collage of Sen. Ed Markey, D-Mass., upper left; Rep. Mike Doyle, D-Pa., upper right; former Rep. Rick Boucher, D-Va., lower right; and FCC Chairman Ajit Pai, lower left.)