Regulatory classification

I thought I would point out some of the more fun arguments that may come up on Feb 1 in the oral argument in Mozilla v. FCC, the challenge to the Restoring Internet Freedom Order (RIFO). As always, keep in mind that oral argument is a perilous guide to the final order, and the judges on the panel have a reputation for peppering both sides with tough questions. 

The Feb. 1 oral argument in the legal challenge to the Federal Communications Commission's Restoring Internet Freedom order (the case is Mozilla Corp. V. FCC) is going to be an epic event, at least in terms of the time allotted for both sides to make their cases. It is the only case slated for argument that day.

Some may be tempted to predict judicial outcomes by looking at the party of the judges and the President who nominated them. The panel scheduled to hear Mozilla v. Federal Communications Commission in the Court of Appeals for the DC Circuit features judges who have both ruled for and against administrative agencies. The panel includes Senior Circuit Judge Stephen Williams (appointed by President Reagan) who issued a blistering 68-page dissent against the FCC’s Open Internet Order in 2015.

Some proponents of the Dec 2017 repeal of network neutrality argue that a year after the decision, the internet is still functioning -- but that doesn’t mean the internet isn’t changing. Consumers may not have noticed broadband providers making network management adjustments, because they are purposefully small and gradual, but they are crucial steps in preventing an open internet. There have been several potential net neutrality violations since the repeal went into effect. If the repeal continues, the way consumers access the internet will gradually change.

At the State of the Net conference, House Communications Subcommittee Ranking Member Bob Latta (R-OH) said that regulators and legislators need to make sure they are not looking in the rearview mirror or putting up roadblocks to innovators who are looking ahead, not backwards. He said that one message he has brought back from his visit to tech startups is they are focused on innovation, so there is not a compliance officer sitting in the corner of the room. Ranking Member Latta also said he thought there was room for consensus on network neutrality.

New House Communications Subcommittee Chairman Mike Doyle (D-PA) said that network neutrality will be the subject of the first subcommittee hearing under his chairmanship. In a speech to the State of the Net conference in Washington, Chairman Doyle called network neutrality one of the preeminent digital rights issues and said he plans to continue to fight to restore the rules.

Public Knowledge, joined by the Benton Foundation and 14 consumer, rural, and public interest groups, filed a Petition for Reconsideration opposing the Federal Communications Commission’s recent Declaratory Ruling classifying text messaging as a Title I information service under the Communications Act. The groups believe this action undermines the public’s right to use text messaging without undue interference from wireless companies.

A coalition of cable and wireless organizations are asking a judge to invalidate Vermont's new network neutrality law on the grounds that the measure goes against federal policy. VT lawmakers “purposefully acted to undermine federal law,” the American Cable Association, CTIA -- The Wireless Association, NCTA -- The Internet & Television Association, New England Cable & Telecommunications Association and USTelecom -- The Broadband Association write in court papers filed Jan 23 with US District Court Judge Christina Reiss in VT.

The US Court of Appeals for the DC Circuit has released a detailed guide to its network neutrality oral argument scheduled for 9:30am on Feb 1. The Court live streams audio of all oral arguments, except when classified or sealed matters must be discussed. A link will be provided on the court internet site home page. Audio recordings of the oral arguments will be available by 2:00pm on Feb 1. 

In the months leading up to the Federal Communications Commission assault on net neutrality, big telecom and FCC Chairman Ajit Pai told anybody who’d listen that killing net neutrality would boost broadband industry investment, spark job creation, and drive broadband into underserved areas at an unprecedented