Mozilla Corp., et al. v. FCC and United States of America.

• Author: Frascella, Christopher
• Position: Net neutrality rulings

940 F.3D 1 (D.C. CIR. 2019)

In Mozilla Corp. v. FCC, (1) the United States Court of Appeals for the D.C. Circuit upheld the FCC's 2018 Restoring Internet Freedom Order in part, vacated it in part, and remanded it in part. (2) The court found that it was permissible for the FCC to reclassify cable broadband internet as an "information service" rather than as a "telecommunications service" and mobile broadband as a "private mobile service" rather than as a "commercial mobile service," (3) meaning that broadband internet providers would not be subject to the more rigorous common carrier regulations of Title II of the Telecommunications Act of 1996. (4) The court also found that the FCC's revised transparency rule, reducing disclosure requirements it had instituted under a prior administration, was not arbitrary and capricious. (5) The D.C. Circuit vacated the FCC's Preemption Directive, which would have prevented states from implementing more rigorous regulations of their own on broadband providers, and remanded the issues of pole attachments, the Lifeline program, and public safety matters, as the court found that the FCC failed to adequately address those issues in its 2018 Order. (6)

1. BACKGROUND

   Mozilla Corporation, among other Internet companies, non-profits, state and local governments, and other petitioners, brought this action in objection to the terms of the FCC's 2018 Restoring Internet Freedom Order, which reversed many of the terms implemented by the FCC's prior 2015 Promoting and Protecting the Open Internet Order ("Open Internet Order"). (7) Petitioners urged the D.C. Circuit to find the 2018 Order to be a misinterpretation or a violation of the law. (8)

   To provide a very brief overview of the recent history of the "net neutrality" dispute within the FCC, in 2002 the FCC classified broadband providers as an information service. (9) The Supreme Court found this classification permissible in Nat'l Cable & Telecommunications Ass'n v. Brand X Internet Services. (10) In 2015, the FCC classified them as a telecommunications service, which the D.C. Circuit found permissible in United States Telecom Ass n v. FCC. (11) In 2018, the FCC classified broadband providers as an information service, which the D.C. Circuit found permissible here in Mozilla. (12) The defense test articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., was referenced heavily in each of these opinions. (13)

   Prior to the 2015 Order, in Brand X, the Supreme Court held that it was appropriate to apply Chevron deference to the agency's interpretation of the definition of "telecommunications service" (14) and that it was permissible for the FCC to classify broadband providers as an information service. (15) In a dissenting opinion, Justice Scalia observed that the Court recognized that DNS functionality, (16) one of the bases for the FCC's classification, is scarcely more than routing information, which is "expressly excluded from the definition of 'information service.'" (17)

   In Verizon v. FCC, which was also decided prior to the FCC's 2015 Order, the D.C. Circuit determined that, having classified fixed broadband providers as information service providers and mobile broadband providers as private mobile service providers, the FCC exempted those providers from treatment as common carriers, even under the agency's Section 706 authority. (18) This classification meant the FCC could not apply antidiscrimination (19) and anti-blocking rules to broadband providers. (20)

   In its 2015 Open Internet Order, the FCC...