Mozilla and its many advocates in the federal appeals court hearing against the Federal Communications Commission's reclassification of Internet Service Providers and the demise of net neutrality predict victory when both sides began oral arguments today in the Court of Appeals for the District of Columbia.
Following oral arguments today, Mozilla Chief Operating Officer Denelle Dixon said: "Today we fought for an open and free internet that puts consumers first. Mozilla took on this challenge because we believe the FCC needs to follow the rules like everyone else. We argued before the Court that the FCC simply cannot renounce its responsibility to protect consumers on a whim. It's not permitted by law, and it's not permitted by sound reasoning. The fight to save net neutrality is on the right side of history. Consumers deserve an open internet. And we look forward to the decision from the Court."
Not going it alone
During a call with media on Jan. 30 arranged by Free Press, a mix of government and technology officials discussed legal strategies for their combined efforts to repeal the FCC's Restoring Internet Freedom Order (RIFO), which in 2017 replaced the Open Internet Order enacted during Barack Obama's presidency and former FCC Commissioner Tom Wheeler's reign. It was the short-lived era of defined net neutrality in the United States -- and some of the judges deciding the oral hearing already have history with prior iterations.(See Net Neutrality: It's Not Dead Yet.)
"We stand strong with our allies, who are petitioners in this case. Our lawyers are very prepared," Dixon said at the time, "and we look forward to the Court looking at these issues very closely and telling the FCC, 'You know what? You got it wrong this time.' We need strong net neutrality protections in the United States. The FCC has the authority to do that."
In a quick survey of most speakers after prepared statements and questions, all agreed -- with varying degrees of certainty -- they would be victorious tomorrow.
"We're also confident the court will be with us on both the facts and the law," Angie Kronenberg, chief advocate and general counsel at INCOMPAS, said, echoing Mozilla's optimism.
Indeed, the sheer volume and mix of those coming together against the FCC rulings reflects the far-reaching implications of Title II's reversal and the end of net neutrality, said Sarah Morris, deputy director of the Open Technology Institute.
"We've seen what this world looks like. The FCC's net neutrality repeal was both misguided as a matter of policy and unsound as a matter of law. Petitioners will appear in court to detail the ways in which the FCC failed to consider relevant facts, misinterpreted the communications Act and other statutes and failed to provide proper notice of the authority it was using in its meager transparency obligation," she said.
"We are confident [about the ruling]. We think the breadth and diversity of the challengers to the FCC's net neutrality rule reflect the myriad hurdles the Commission will have to overcome to succeed in this case," added Morris.
Without FCC regulation, advocacy groups like Free Press see some providers beginning to test boundaries via throttling, for example, said Matt Wood, policy director at Free Press, pointing to a new blog on the advocacy site. "The absence of rules has allowed companies to slowly start to change their business practices in ways that could be harmful," he noted.
The commission itself has sometimes used questionable tactics, according to speaker Senator Ed Markey (D-Mass.), a net neutrality advocate and frequent FCC critic. Last year, for example, he took the FCC to task for its "failure to address fraudulent anti-net neutrality comments, despite skeptical comments at the overall positive tenor of public feedback at the time (and despite difficulties accessing the FCC site to make comments). (See FCC: Traffic, Not DDoS, to Blame.)
For his part, panelist Tony Bowden, fire chief of Santa Clara County, Calif., and one of those charged with combating the huge wildfires last year, shared his anger, frustration and disgust at an environment where fire fighters' lives and ability to do their jobs, and citizens' ability to communicate with each other and emergency personnel, was damaged due to a Commission in Washington, D.C., he said. Some firefighters' cell phone usage was throttled by Verizon during the fires, an action that had nothing to do with net neutrality, according to the service provider.
"The ability to communicate during a crisis needs to be in place prior to an emergency occurring. Lives lost can never be replaced after the fact. Our ability to communicate via the Internet saves lives and property… but only if they work as they are designed to work and only if they continue to focus on building resilient systems and only if the citizens we serve have access to the critical information they need," said Bowden. Chip Pickering, CEO of INCOMPAS, Chris Lewis, vice president of Government Affairs for Public Knowledge, and Markham Cho Erickson, a partner in Steptoe & Johnson's Telecom, Internet and Media Practice also spoke during the call.
Hearing the petitioners
On Friday, a panel of three judges will listen to and decide the case.
The panel includes judges very familiar and active in iterations of telecommunications law. It includes Senior Circuit Judge Stephen Williams (appointed by former president Ronald Reagan), who dissented with the FCC's Open Internet Order enacted under former commissioner Tom Wheeler in 2015 under then-president Barack Obama. Judge Williams included 68 pages of dissent, which Forbes contributor Rose Layton described at the time. Although the court upheld the 2015 order, the FCC under current Chairman Ajit Pai replaced it in 2017 with the Restoring Internet Freedom Order (RIFO). This order has been challenged since before it was enacted.
Other judges deciding its fate include Obama appointees Patricia Millett and Robert Wilkins. Judge Millett wrote the majority opinion upholding the FCC's decision in AT&T versus All American Telephone Co. In that case, the FCC awarded damages to AT&T after All American collected millions of dollars in "unwarranted long-distance access charges" from the plaintiff provider, according to the American Enterprise Institution.
For his part, Judge Wilkins wrote seven majority opinions in cases to do with the Federal Energy Regulatory Commission (FERC), reported AEI in, "Can Party Affiliations Predict the Outcome of Mozilla v FCC?" The judge's rulings were a mixed bag, both for and against the Commission and its authority to act in specific ways.
Those who believe the two Democrat judges will automatically side with their party's leanings are taking an unfounded view, based on the judges' histories. Likewise, assuming the Republican judge will automatically side with current FCC Chairman Ajit Pai is not necessarily true, again based on his past.
It seems the panel of judges truly will decide this case on the merits of the facts and law. It also seems evident an appeal will follow, regardless of the outcome.
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— Alison Diana, Editor, Broadband World News. Follow us on Twitter or @alisoncdiana.
