
Mozilla Re-Files Suit Against FCC to Protect Net Neutrality - DiabloD3
https://blog.mozilla.org/blog/2018/02/22/mozilla-v-fcc-mozilla-re-files-suit-fcc-protect-net-neutrality/
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marcoperaza
Given that the Supreme Court has previously upheld both of the FCC’s
classifications of broadband under the Telecommunications Act of 1996, first
as an “information service” and then as a “telecommunications service” (when
Wheeler reclassified it to impose net neutrality), there is no way that they
will strike down a return to the “information service” classification.

By a legal doctrine known as “Chevron deference”, the courts defer to
regulatory agencies in choosing between plausible interpretations of the law,
instead of choosing an interpretation themselves. From the text of the Act, it
is not clear what broadband internet service is. If a “telecommunications
service”, it is subject to the very extensive Title II requirements including
common carriage. So while the FCC classified it as an “information service” in
the early 2000s, it reclassified it as a “telecommunications service” in 2015
in order to impose net neutrality. Both of these classifications were
challenged in court and survived scrutiny. Now the FCC has gone back to the
“information service” classification. There is no reason to think that the
court has changed its mind on the reasonableness of either interpretation of
the act, so any suits challenging this would need to allege some procedural
deficiency in how the FCC promulgated the new regulation. The plaintiffs are
not likely to prevail.

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rsingel
I would hesitate to say never. When the Supreme Court allowed the FCC to
designate cable broadband as an info service (Title I) in 2005, the majority
basically said the facts at the time make it _plausible_ to call ISPs that way
because, well, they offer email and webpages, but that even then the _better_
interpretation was Title II. (Scalia famously said it was ridiculous to think
ISPs weren't Title II).

So the courts could now say that Title I doesn't fit at all because they are
basically just hired pipes. Chevron deference only goes so far - an agency
can't call a river an ocean, for instance. So this FCC is making as much as
they can of DNS and ISP caching in its Order to argue ISPs are not just data
transporters.

And finally, on Chevron deference - one thing to remember: many conservatives
hate it since it hands power to agencies over Congress. If this ever got to
the Supreme Court, watch out for Neil Gorsuch, who will have to face the
choice of party over his principle hatred of Chevron deference.

~~~
marcoperaza
Scalia’s dissent was more nuanced and not all that favorable to net neutrality
advocates. He said that the connection of the home to the network was a
telecommunications service, over which an information service is provided. The
routing and interconnection decisions, optimizations, and prioritizations made
within the ISP could very plausibly have fallen under the information service
aspect. Here are some excerpts suggesting just that:

> _Since the delivery service provided by cable (the broad-band connection
> between the customer’s computer and the cable company’s computer-processing
> facilities) is downstream from the computer-processing facilities, there is
> no question that it merely serves as a conduit for the information services
> that have already been “assembled” by the cable company in its capacity as
> ISP. This is relevant because of the statutory distinction between an
> “information service” and “telecommunications.” The former involves the
> capability of getting, processing, and manipulating information. §153(20).
> The latter, by contrast, involves no “change in the form or content of the
> information as sent and received.” §153(43). When cable-company-assembled
> information enters the cable for delivery to the subscriber, the information
> service is already complete. The information has been (as the statute
> requires) generated, acquired, stored, transformed, processed, retrieved,
> utilized, or made available. All that remains is for the information in its
> final, unaltered form, to be delivered (via telecommunications) to the
> subscriber.

This reveals the insubstantiality of the fear invoked by both the Commission
and the Court: the fear of what will happen to ISPs that do not provide the
physical pathway to Internet access, yet still use telecommunications to
acquire the pieces necessary to assemble the information that they pass back
to their customers. According to this reductio, ante, at 22–24, if cable-
modem-service providers are deemed to provide “telecommunications service,”
then so must all ISPs because they all “use” telecommunications in providing
Internet functionality (by connecting to other parts of the Internet,
including Internet backbone providers, for example).

[...]

Second, it is apparently possible to sell a telecommunications service
separately from, although in conjunction with, ISP-like services; that is
precisely what happens in the DSL context, and the Commission does not contest
that it could be done in the context of cable. The only impediment appears to
be the Commission’s failure to require from cable companies the unbundling
that it required of facilities-based providers under its Computer Inquiry._

~~~
rsingel
I disagree with that interpretation.

"After all is said and done, after all the regulatory cant has been
translated, and the smoke of agency expertise blown away, it remains perfectly
clear that someone who sells cable-modem service is “offering”
telecommunications. For that simple reason set forth in the statute, I would
affirm the Court of Appeals."

Those interested can read the dissent here:
[https://www.law.cornell.edu/supct/html/04-277.ZD.html](https://www.law.cornell.edu/supct/html/04-277.ZD.html)

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mehrdadn
> the FCC’s decision to overturn the 2015 rules violates both federal law as
> well as harms internet users and innovators.

What was illegal about the FCC decision?

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zootboy
I don't know what arguments Mozilla is planning on using in this suit, but one
could argue that the FCC is violating their mandate to promote competition in
the broadband space.

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SlowRobotAhead
Mandates are't law though, right?

~~~
dragonwriter
A _legal_ (statutory, for instance) mandate is such exactly because it is law.

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TriStarGod
Just donated to Mozilla. Even if Mozilla wins, Trump's FCC may not enforce it.
Its just like how ACA is being enforced in Illinois. Blue Cross is illegally
selling insufficient health insurance.

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amerine
Thank you, Mozilla.

~~~
ep103
Just saying, the best way to thank Mozilla, is to make FireFox your default
browser. Firefox for Android is pretty good too.

~~~
CaptSpify
Firefox for Android lets you install adblockers, and umatrix. Mobile pages
load fast again!

------
kakarot
Just when I was on the verge of leaving Firefox over UI issues.

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turc1656
According to Mozilla's legal filing, they are claiming it violates the
Communications Act of 1934 and the Telecommunications Act of 1996 because the
FCC's decision was...wait for it... _" arbitrary, capricious, and an abuse of
discretion"_.

Sounds like they are basically throwing a temper tantrum and grasping at
straws. Their argument essentially amounts to "We believe this ruling is so
bad that it can't possibly be allowed to go through. This is a clear violation
of their statutory mandate."

I find arguments like this truly astounding because no one was claiming they
were violating federal law before they implemented the net neutrality
regulations. To me, this is eerily similar to the recent DACA ruling where the
federal judge required that DACA must be kept in force for the time being
while everything is being sorted out. But the reason the judge gave was pretty
telling - _" The question before the court is thus not whether defendants
could end the DACA program, but whether they offered legally adequate reasons
for doing so."_ That sounds pretty much exactly like the argument we are
seeing here. In fact, the author of the CNN article I grabbed that judge's
quote from also uses the same language about Trump's move on DACA being _"
arbitrary and capricious"_.

Searching these phrases online you will find this all relates to the
Administrative Procedure Act of 1946. There are two types of judicial review
under this act - the arbitrary and capricious review and the substantial
evidence review. Obviously, based on these filings, this would fall under the
former. That does require a reasonable explanation for the decision. However,
given the nature of this topic the justification is obvious - that a huge
portion of the country supports the elimination of DACA. That a judge would
ignore this is unconscionable. The only other option under this law is to go
after the decision as a violation of the separation of powers. However, if it
is ruled as such, that also means that Obama's 2012 creation of the DACA
program was also a violation of the separation of powers and thus the DACA
program would need to be shut down.

Whether you are in favor of net neutrality or against it - in favor of DACA or
not, the law needs to be the law. All of this judicial nonsense reeks of
political games. And every time judges uphold stuff like this based on these
ridiculous, spurious arguments, the Rule of Law continues to degrade and our
nation suffers.

~~~
civilitty
The Administrative Procedure Act of 1946 _is_ the law. Period. It is a core
foundation for the modern regulatory framework in the United States, including
how fast regulations can be changed and the procedures that need to be
followed, regardless of the agency's Congressional mandate.

The reason judges are using the law to overturn executive actions so much more
than before is because _no previous administration has been so arbitrary and
capricious in their actions._

~~~
turc1656
If you are referring to DACA - it's not arbitrary and capricious considering
this was a hot button election issue and a large number of Americans support
this change. If you are referring to net neutrality, Ajit Pai gave months of
notice that this was being discussed (so it was not on a whim) and provided a
lengthy explanation as to the reasons the decision was made. You might
disagree with the reasons, and that's totally fine and understandable. But to
call it arbitrary and capricious is kind of ridiculous. It's most likely
simply a political standpoint you don't support and thus want to have the
courts interject in the hopes they agree with you and find the reasoning
flawed. This is legislating from the bench, because it effectively allows them
to declare a line of political reasoning insufficient. It is a particularly
insidious practice that effectively allows federal judges to step in and
override something they disagree with and it's something they've gotten into a
really nasty habit of doing far too often.

I will taper my argument with one point - if the recent investigation into Pai
that was just announced yields any hard evidence of corruption or anything
like that then I would support overturning this ruling on the grounds that his
vote was influenced by outside forces. He should then be removed (and possibly
go to jail depending on what the evidence shows) and the FCC could vote on
this issue again with a new 5th member and we would see if they vote in the
same way or not.

~~~
dragonwriter
> If you are referring to DACA - it's not arbitrary and capricious considering
> this was a hot button election issue and a large number of Americans support
> this change.

The legal standard of "arbitrary and capricious" has to do with adherence to
the substantive and procedural requirements of the Administrative Procedure
Act, _not_ to the degree of popular support.

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chapill
I wonder who's funding Mozilla in this proxy fight? They seem to be struggling
just to stay alive with their core product, Firefox. I can't see how they can
justify fighting expensive legal battles on a whim to shareholders.

~~~
staplers
Are you joking?

"\-- Mozilla booked $323 million in royalties in 2014, up about 7% from the
year earlier."

~~~
chapill
Are you? 2014 is the year they signed a big deal with Yahoo. Of course they
did well that year.

~~~
staplers
[https://www.mozilla.org/en-
US/foundation/annualreport/2016/](https://www.mozilla.org/en-
US/foundation/annualreport/2016/)

Better?

"Mozilla’s consolidated reported revenue (Mozilla Foundation, Mozilla
Corporation and all subsidiaries) for CY 2016 was $520M (US), as compared to
$421M in 2015."

~~~
chapill
You're still missing the point. FF is free. Where is the revenue coming from?
I think I found my answer on your page though,

[https://blog.mozilla.org/blog/2017/11/14/firefox-features-
go...](https://blog.mozilla.org/blog/2017/11/14/firefox-features-google-as-
default-search-provider-in-the-u-s-canada-hong-kong-and-taiwan/)

Mozilla is acting as a Google puppet. I'm sure they didn't risk breaking a 5
year deal with Yahoo for nothing.

~~~
actionscripted
It's not like it's a secret that Mozilla Corp. makes their money from search.
It's been that way for a very long time and they spell it out right in the
State of Mozilla link:

"The majority of Mozilla Corporation’s revenue is from royalties earned
through Firefox web browser search partnerships and distribution deals around
the world."

Their revenue is up more than $100 million from last year so they're not
exactly dying.

How do you figure they're barely surviving? How does that make them a Google
puppet? What exactly is your point through this thread?

If you think it's news that they take Google's money I'm not sure you're
qualified to be making these sorts of claims.

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mlindner
That's unfortunate. I had thought that at least Mozilla had people that
understood BGP and network routing and why it's impossible for an ISP to treat
all data equally and also maintain good QoS. I guess this is just them
advocating for themselves as it reduces their costs.

~~~
urda
The burden of proof is on you, please provide it.

~~~
mlindner
See my other reply.

