FCC net neutrality repeal was arbitrary, capricious and weird, federal appeals court told

21 August 2018 by Steve Blum
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The Federal Communications Commission ignored facts and the law when it voted to repeal network neutrality rules late last year. That’s the case that two coalitions made to a federal appeals court in Washington, D.C. yesterday.

A group led by Mozilla that includes a wide range of for profit companies and non-profit organisations made the key point that broadband is a telecommunications service, and not an unregulated information service, as the FCC’s tortured logic claimed…

The law defines “telecommunications” as the transmission of information between points specified by the user without change in the information’s form or content. There is no exception for transmissions that are intended to allow access to an information service. Indeed, the Order’s newly imagined exception to the telecommunications service definition is close to the very definition of telecommunications service: [broadband internet access service (BIAS)] providers simply transmit information between users. None of Comcast, AT&T or Verizon adds scenes to the movies we watch online or embellishes our friends’ notes on a social media “wall.” BIAS is a transmission conduit; its nature is unchanged by the fact that it intentionally allows reaching others’ information services.

The brief also argues that the FCC’s repeal was “arbitrary and capricious” because, among other things, it didn’t refute the findings of the original 2015 net neutrality decision; it simply said we think not.

The second group includes attorneys general from several states, including California, and other public agencies, including the California Public Utilities Commission, the City and County of San Francisco and Santa Clara County. They also made the “arbitrary and capricious” argument – that’s a well established basis for judicial rejection of an executive agency’s action.

On top of that, they urged the court to throw out the FCC’s declaration that it was preempting any attempt by state or local governments to fill the void…

Having disavowed [telecommunications/common carrier] authority over broadband, the Commission’s preemption order can be rooted only in [information service-related] ancillary authority, which in turn must be based on some separate statutorily mandated responsibility. The Order identified no such mandate, and instead relied on a purported federal policy of deregulation unmoored from any specific statutory command. But as this Court held in Comcast Corp. v. FCC, policy alone cannot provide the basis for the Commission’s exercise of ancillary authority, and hence cannot support the Order’s attempt to preempt here…

In any event, there is no conflict between state regulation of broadband service and the Communications Act, which expressly contemplates and relies on active state supervision in this area.

The FCC has to respond in the next few weeks.

On Petition for Review of an Order of the Federal Communications Commission:
Joint brief of the petitioners, Mozilla Corporation, et al, 20 August 2018
Brief of the “Government Petitioners”, 20 August 2018
Government Petitioners’ addendum, 20 August 2018