Mozilla and other digital advocacy companies filed a lawsuit in August alleging the FCC had unlawfully overturned 2015’s net neutrality rules, by among other things “fundamentally mischaracteriz[ing] how internet access works.” The FCC has filed its official response, and as you might expect it has doubled down on those fundamental mischaracterizations.
The Mozilla suit, which you can read here or embedded at the bottom of this post, was sort of a cluster bomb of allegations striking at the FCC order on technical, legal, and procedural grounds. They aren’t new, revelatory arguments — they’re what net neutrality advocates have been saying for years.
There are at least a dozen separate allegations, but most fall under two general categories.
- That the FCC wrongly classifies broadband as an “information service” rather than a “telecommunications service.” There’s a long story behind this that I documented in the Commission Impossible series. The logic on which this determination is based has been refuted by practically every technical authority and really is just plain wrong. This pulls the rug out from numerous justifications for undoing the previous rules and instating new ones.
That by failing to consider consumer complaints or perform adequate studies on the state of the industry, federal protections, and effects of the rules, the FCC’s order is “arbitrary and capricious” and thus cannot be considered to have been lawfully enacted.
The FCC’s responses to these allegations are likewise unsurprising. The bulk of big rulemaking documents like Restoring Internet Freedom isn’t composed of the actual rules but in the justification of those rules. So the FCC took preventative measures in its proposal identifying potential objections (like Mozilla’s) and dismissing them by various means.
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