FCC Defends 'Internet Freedom' Order as Best Read of Act and 'Reasonably' Interpreted

The FCC said restoration of "light-touch" broadband regulation reflects the best read of the Communications Act and its goal of an internet "unfettered" by federal and state regulation. The "internet freedom" order is backed by the agency's "legal analysis, public policy concerns, and the extensive record," said the FCC/DOJ brief Thursday, responding to challenges (see 1808210010) in the U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC, No. 18-1051. Though the decision reversed a 2015 Title II net neutrality order, the FCC "had ample discretion, following a 'change in administrations' to reevaluate its policies," it said, citing the 2005 Supreme Court Brand X deferring to the commission classification of cable broadband as a Title I information service.

DOJ and ISP motions to block California's net neutrality law will be heard Nov. 28, ordered Judge John Mendez of the U.S. District Court for Eastern California in USA v. California, No. 2:18-cv-02660 and American Cable Association v. Xavier Becerra, No. 2:18-cv-02684. Amicus briefs supporting the motions are due Oct. 19, California's brief is due Oct. 26, amicus briefs backing California are due Nov. 2 and movant reply briefs are due Nov. 9. The movants argued the state law is pre-empted by the FCC's net neutrality rollback and the Communications Act, and violates the U.S. Constitution's supremacy and commerce clauses (see 1809210059 and 1810030036).

The FCC's first line of defense was highly technical. It "reasonably classified broadband internet access as an information service because ... it offers users the 'capability' for '"acquiring" and "retrieving" information' from websites and applications, 'and "utilizing" information by interacting with stored data,'" said its brief. Brand X says it's "reasonable for the Commission to conclude that Internet access is an information service" because "subscribers can reach third-party Web sites via 'the World Wide Web, and browse their contents, [only] because their [broadband] provider offers the capability for … acquiring, [storing] … retrieving [and] utilizing … information' .... The agency made the same reasonable finding here." The FCC also concluded that "broadband service inextricably intertwines high-speed transmission with the information processing capabilities provided by Domain Name Service (DNS) and caching," and that ISPs don't make stand-alone telecom offerings, it said.

The FCC "reasonably determined" mobile broadband is a "private mobile service" -- not a "commercial mobile service" subject to common carrier regulation -- to ensure fixed and mobile broadband aren't regulated differently, the brief said. "Mobile service qualifies as a 'commercial mobile service' only if it 'makes interconnected service available' to the public." The FCC concluded mobile broadband didn't offer interconnected service because it doesn't enable users "to communicate with all users of the public switched telephone network," the brief said.

Absent Title II, the commission said it lacked authority to keep its net neutrality rules, citing D.C. Circuit's Verizon forbidding common-carrier regulation of information services. The rules were also unwarranted, given remaining regulatory and market protections that are less burdensome, the brief said.

The FCC "reasonably considered" the "impact on investment, competition, reliance interests, and government services," said the brief. "The Commission reasonably found that the record is consistent with its determination that Title II regulation discourages broadband investment and deployment. It also reasonably determined that broadband providers face competitive constraints that, together with preexisting antitrust and consumer protection laws, limit their ability to engage in harmful conduct under a light-touch regulatory framework." Edge providers' claims of reliance on past regulation lacked specific showings, it said.

The commission "reasonably determined" state or local imposition of "more stringent requirements on broadband service should be preempted," the brief said. "Broadband is a predominantly interstate service. ... While Section 2 of the Act preserves state jurisdiction over intrastate communications, Congress did not afford states any authority over interstate communications, which are instead governed principally by federal law."

"I have never seen the words 'reasonable' and 'reasonably' used so often in a brief," emailed net neutrality advocate Andrew Schwartzman Friday. "They are hoping for wide latitude." Oral argument is Feb. 1. Mozilla and California Attorney General Xavier Becerra's office didn't comment.