,
51 tweets,
7 min read
Read on Twitter
We'll be liveblogging oral arguments for Mozilla v. FCC in this thread, so stay tuned for lots of arguing about net neutrality.
The petitioners in the case go hard right off the bat: “This order is a stab in the heart of the Communications Act.”
“[The FCC’s repeal of net neutrality] does not restore anything except an imaginary past”
The court is already pushing hard on the idea that broadband service is an “information service” that includes things like web hosting, newgroups, and email.
What’s an information service, and what’s a telecommunications service? “How are we supposed to slice the bologna here?” the court wants to know.
”So when people are using Comcast to access NBCU content, it’s an information service, but if they’re browsing for something else it’s a telecommunications service?” asks the court.
Mozilla’s lawyer and the court are arguing deeply in the weeds about previous court decisions and whether they are consistent.
The fight here is about whether the services available on the network turn broadband into an information service. When you call an airline about your flight, “this doesn’t make AT&T into an airline,” the petitioners argue.
“Imagine looking at a train and saying, this train is not a train...because it carries coal to a power plant that transforms it into electricity.”
.@reckless here. I gotta say Mozilla has already gotten lost in the weeds of administrative law, instead of just arguing the obvious: the FCC acted arbitrarily when it repealed net neutrality.
The Mozilla side argues the FCC just won’t call a telecommunications service what it is: “this is like a surrealist painting that shows a pipe and captions it, ‘this is not a pipe’"
“Consumers value transmission as a means, not as an end in itself,” argue the plaintiff.
One judge seems hostile to how much weight to give broadband consumer complaints sent to the FCC: “We know what the consumer understands based on 50,000 complaints?”
Right now Mozilla’s argument is that consumers are smart enough to know that there is an access layer and a services layer to their internet service, and the court is pushing hard on how it’s getting to that conclusion.
“What is wrong is to say… we don’t care what any consumer thinks,” says Mozilla. (Ajit Pai said during the repeal he was going to ignore net neutrality comments that weren’t “serious legal arguments.)
Again, it really seems like Mozilla has gotten lost in the weeds of these bad analogies instead of just arguing that the FCC didn’t have any record or evidence that supported overturning net neutrality.
Mozilla says the FCC is saying, “We can trust ISPs to do the right thing, to preserve internet openness.”
That trust was misplaced because of the exceptionally flawed economic analysis.
It’s not as though the FCC says the glass is half full and half empty. It’s saying, ‘it’s basically empty, and so what?
The judges are really pushing the idea that 25mbps broadband is fast enough. “I take it your point is that if people only have one provider, we don’t even know if they would choose slower speeds.”
Judge: “I think you’ve gone almost double your allotted time for argument.” Says Mozilla team has “one sentence.”
It doesn’t seem like that… went great? Pretty hard to identify a through line or even a solid punch landed.
The next lawyer for the plaintiffs is here to argue that the FCC needed to have a reasonable process to change the classification of broadband.
Plaintiffs: “There is the the sense that the first part of the [repeal order] is the [FCC} pretending to be a junior varsity court… we don’t give agencies deference because they are better at legal analysis than courts.”
Mozilla side says “we never get a straight answer from the Commission” on when, exactly, blocking or throttling isn’t permitted.
Plaintiffs are now arguing the FCC didn’t consider consumer protection law: “They were compelled to conduct an analysis, and they just didn’t.”
“If a provider says we are going to block the Daily Caller… they will be doing that precisely because they think their customer base finds this stuff offensive, and there’s no reason to think that competitive pressure will provide a remedy to that.”
The heart of this argument is that the FCC punted a bunch of big problems like censorship and free speech to antitrust law without providing any of the work needed to justify it.
Plaintiffs: “This is an easy case, because you can’t even evaluate any claim [the FCC] makes about antitrust or consumer protection law...because they haven’t told you what [harms] it needs to prevent.”
We are deep in the weeds of what the Administrative Procedure Act requires of agencies like the FCC. It is riveting if hearing people stridently insist that “agencies must make reference to the legal authority” rivets you.
This is a very long digression into whether the FCC even left itself the authority to do anything at all, which is explained well by @haroldfeld here: wetmachine.com/tales-of-the-s…
A big point of contention in the case will be when, in squishy situations, the FCC gets “deference” — when it can make a decision even if not everyone agrees with its thinking.
If this seems complicated, it's because everything is filtered through statutory language, judicial interpretation of that language, and executive regulatory actions based on that interpretation.
The court points out that no carrier has adopted a policy of paid prioritization in the eight months since Pai's order took effect, so we have no idea how the disclosure requirements for those policies will actually work.
Now Santa Clara county is up to argue the FCC didn't address possible harms to public safety from the net neutrality repeal. Verizon throttling during the CA wildfires is a big part of the case: theverge.com/2018/8/21/1776…
Now petitioners are making the case that the FCC order can't preempt state neutrality laws, like the one we've seen in California. More background here: theverge.com/2018/10/2/1792…
The core of the preemption argument: "If they [FCC commissioners] lack authority to regulate what they acknowledge are certain abusive practices that require a response, they cannot also prevent states from acting in this area."
As arguments continue in court, the newest FCC commissioner is speaking out publicly in favor of net neutrality:
After a 15 minute break, the FCC is up, defending its net neutrality repeal. Attorney says precedent shows “the Commission has the authority to do precisely what it did."
The FCC is trying to explain why the internet should be less regulated than phone service, saying the web is “a fundamentally different experience than making a telephone call.” But the court seems skeptical.
The FCC says Title II rules were “depressing innovation and investment." That's not what telecoms said at the time. theverge.com/2014/12/11/737…
Judge giving the FCC a full interrogation on the investment point: if broadband investment went down, like they say, why did service providers once say the exact opposite?
"To the extent that consumers value open platforms...those will be the offerings in the market," says the FCC. Problem solved!
While the FCC fights in court to keep Title II repealed, there's a new push by Congress to bring back net neutrality rules theverge.com/2019/2/1/18206…
Court seems convinced by the public safety case. "Post hoc remedies don't work in the public safety context, and that, unless I missed it wasn't addressed anywhere in the order."
"I don't even understand that answer" is usually not something you want to hear from a judge.
The FCC is pushing back on preemption arguments: "Everyone agrees that broadband service is a jurisdictionally interstate service."
"This is probably the most scrutinized industry in America," says the lawyer representing internet service providers, arguing any paid prioritization or throttling would be subject to massive public scrutiny.
So much of the court’s time today was spent on the FCC’s authority to make rules, which is exactly why the Obama FCC lost to Verizon in this court the first time it imposed net neutrality. It would be funny if the Trump FCC lost for the same reason when it tries to repeal it.
Oral arguments are officially closed! Stay tuned for a full report, but it seems like the FCC's decision to ignore the public safety question could be a real problem for Pai.
