Posted: April 7th, 2019
By: Daniel Norton
On February 1st, 2019, the D.C. Court of Appeals heard oral arguments in the case Mozilla Corp. v. FCC. The premise of the case is that Mozilla, and several other interested parties, have sued the FCC over the Restoring Internet Freedom Order’s reclassification of internet services as information services rather than telecommunications services under the Telecommunications Act of 1996. A telecommunications service is one that transmits unaltered information while an information service is used for “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information.” This classification is important as the D.C. Court of Appeals has held that the FCC cannot enforce net neutrality against Internet Access Providers if they are classified as telecommunications services, but they can if the IAPs are classified as telecommunications services. The 2015 Open Internet Order classified IAPs services to be telecommunications while the 2017 Restoring Internet Freedom Order reclassified IAPs services as information services.
There is already an extensive case history concerning the net neutrality debate. The major points are that (1) the U.S. Supreme Court declared the FCC has the ability to reclassify services under the Telecommunications Act of 1996; (2) the FCC’s actions to reclassify will be judged using the Chevron test; and (3) in 2016, the D.C. Court of Appeals held that the FCC’s classification of IAPs services as information services passed the Chevron test. The Chevron test is a two-step test. First, a court will look toward relevant legislation to see if Congress addressed the precise question at issue. If not, the court applies step two of the Chevron test which asks whether the agency’s actions were reasonable. Under this second step, a court will be deferential to an agency’s actions and interpretation of a statute if Congress has not addressed the precise question at issue and the agency’s explanation of their actions is based on a reasonable interpretation of the construction of the statute.
Both Mozilla and the FCC based most of their arguments in their briefs around whether the FCC’s reclassification was reasonable. Mozilla focused their arguments around the idea that the FCC acted without considering sufficient sources. Meanwhile, the FCC stressed that their actions were reasonable. It is important to note that the two judges who upheld the FCCs classification of IAPs as information services in the 2016 case Telcomm. V. FCC are not the presiding judges in Mozilla v. FCC. As a result, the court in Mozilla could be more inclined to accept the FCC’s reclassification of IAP’s as telecommunications services as reasonable.
If I had to predict the outcome of this case, I would say that the court in Mozilla will allow the FCC’s reclassification of IAPs as telecommunication services. Courts have typically accepted any rational reason an agency has offered to pass step two of the Chevron test. As a result, the FCC is likely to win in Mozilla v. FCC just as they did in Telecom. v. FCC three years ago and for the same reason: judicial deference. Regardless of the outcome, the result is sure to be appealed to the Supreme Court. The legal battle for net neutrality is far from over.
Daniel Norton is a second-year law student at Wake Forest University School of Law. He has worked in Information Technology for the past 7 years and is currently working to increase the accuracy of contract analysis Artificial Intelligence. Upon graduation, he intends to practice Intellectual Property Law.