FCC Defends Net Neutrality Repeal Before D.C. Circuit

The FCC came under fire Friday morning before the U.S. Court of Appeals for the D.C. Circuit while defending its 2018 order, Restoring Internet Freedom, which repealed the agency’s 2015 Net Neutrality Order, thereby removing regulatory restrictions on Internet content blocking, throttling and paid prioritization by Internet service providers (ISPs) such as AT&T, Comcast and Verizon. Judge Patricia Millett hammered FCC counsel over the FCC’s re-classification of broadband Internet access service (e.gs., Xfinity, FIOS) as an “information service” under the federal Communications Act, paving the way for minimal or no  FCC regulation. Judge Millett asked FCC counsel repeatedly what capability broadband offers that is any different from a voice telephony call, which is unquestionably regulated “telecommunications” under the Act.

Judge Millett noted that, like broadband, “[t]elephone service is constantly used to acquire information, and to share information.” FCC counsel explained that broadband includes information service components, including Domain Name Service (DNS, which translates between numerical IP addresses and typed-word domain names) and content caching (storing popular online content in servers located next to Internet access aggregation points, to speed delivery). Counsel argued that these information service components were “sufficient” to permit the agency to classify the overall broadband service offering as information not telecommunications. Counsel also argued that the FCC has discretion to classify broadband different from voice, even if they share some characteristics.

Judge Stephen Williams appeared more receptive to the FCC’s explanation, suggesting that past precedent supported the agency’s classification of broadband as an information service. Judge Robert Wilkins focused his questioning on real-world impacts, asking FCC counsel if the order permits ISPs to manipulate online traffic however they wish, so long as they disclose their actions to consumers.

Meanwhile, all three judges had tough questions for the parties challenging the order, led by Mozilla, maker of the Firefox web-browser. Counsel for Mozilla called the order a “stab in the heart of the Communications Act” and argued that the FCC shirked its regulatory duty by reversing its 2015 classification of broadband as a “telecommunications service” under the Act. Counsel argued that broadband Internet access service should be classified as telecommunications because it is a pure transmission of data from one point to another, and that the DNS and caching components were merely network management capabilities which do not alter the essential character of the telecommunications. Judges Williams, Millett and Wilkins all expressed skepticism as to whether that transmission component of broadband could or should be separated from the more interactive dimensions of the package offered by cablecos and telcos, like the ability to browse website and interact with online content.

The case, known as Mozilla v. FCC, D.C. Circuit Case No. 18-1051 et al., is fully briefed and the Court is free to issue its decision at any time. Generally, the D.C. Circuit can take anywhere from 2-6 months to generate a written opinion in a complex telecommunications regulatory case.

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Christopher Van de Verg