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Never-ending net neutrality litigation means lawyers always win


Mozilla v. Federal Communications Commission (FCC) is the ninth net neutrality lawsuit since the landmark 2005 Brand X case at the Supreme Court, which laid out the administrative law precept of deference to agencies when interpreting ambiguous statutes. In Mozilla, the US Court of Appeals for the DC Circuit leaned heavily on Supreme Court precedent and appeared to deadpan the case as “yet another iteration of a long-running debate regarding the regulation of the Internet.” 

via WikiMedia

Apparently there will be no end soon, as the DC Circuit both upheld the FCC’s restoration of a light touch regulatory approach and said that states could make their own rules. This ambiguous ruling is a gift that will keep on giving to expert law firms, which can book another few years of revenue from tech and telecom companies — funds that could be spent on new broadband networks, information technology equipment for the poor, training the elderly to get online, or other socially beneficial endeavors to close the digital divide.

Earlier this year I wrote a blog asking if party affiliations could predict the outcome of Mozilla v. FCC. I reviewed past opinions from the judges (2 Democrats, 1 Republican) showing that they had ruled both for and against administrative agencies. I concluded it wasn’t possible to predict the outcome based on the judges’ party affiliations, and expected the judges to rule on whether the FCC followed the law in its decision. Last week’s unanimous decision upheld the FCC’s reversal of the 2015 utility-style regulation and the restoration of a light touch approach. My AEI colleague Daniel Lyons remarked on the judges’ restraint, suggesting that if Supreme Court precedent in Brand X did not bind their decision, they would have voted differently.

However, the judges revealed that their deeply conflicting personal opinions — in contrast to how they ruled — fall along party lines. For example, Judge Patricia Millet noted her “substantial reservation” on the decision and that a Title I classification for broadband ‘cannot bear very much reality,’” a reference to TS Eliot’s Four Quartets, the poet’s meditation on man and religion. She argues that broadband is too important to be left to the market and requires a Title II classification, the official view of the Democratic Party. Judge Robert Wilkins, agreeing with Millet’s reasoning, said it is time for the Supreme Court to revisit Brand X.

Consistent with his party, Senior Judge Stephen Williams prefers a deregulatory approach to broadband, though he concurs with the panel on the broad strokes of the decision. However, his two net neutrality opinions have called out the hypocrisy of his fellow judges. In the 8th iteration of the net neutrality saga, United States Telecom Association v. FCC, his dissent blasted the lack of reasoned decision making at the 2015 FCC and the subsequent judicial blessing. In his Mozilla dissent Williams notes that his fellow judges agree that the FCC has the authority to classify broadband under Title I or Title II, but they only support preemption when it protects affirmative federal regulations. Indeed, Democrat judges had no problem with preemption when the 2015 FCC imposed the strongest prohibitions on state rulemaking.

While the friction between the federal government and states is not new, the speed and coordination by the states for litigation along party lines is. A record 90 lawsuits have been filed by state attorneys general against the current administration, largely against deregulatory efforts (including this case). However, the FCC’s regulatory efforts have also been challenged by partisan cities, as the agency attempts to make a national 5G policy to speed rollout. It remains to be seen whether and how states move forward, but the FCC could preclude some activity by issuing a declaratory ruling stating that reinstating 2015-style net neutrality rules conflict with FCC policy, are illegal, and will be challenged.

The Mozilla decision is well-timed for the 2020 election season. The act of challenging the rule of law is a potent form of symbolic politics, and the ideas behind policy proposals and the audiences to which they are directed matter more than the policies themselves. The political efforts are amplified through partisan media narratives and sophisticated digital advocacy campaigns. However, as I describe in my 2018 report Tech Policy and the Mid-Term Election, voters will likely have other things on their mind than internet regulation.

In the big picture, the idea that the net neutrality regulation can now be outsourced to state legislatures is a dagger in the heart of one of advocates’ key arguments: that regulating the internet requires some expert magic expertise that resides at the FCC. Indeed, if this special knowledge resides in the state legislatures across America, it could certainly live at the Federal Trade Commission, and indeed that is where jurisdiction is properly domiciled today.

The Mozilla decision is a blow to regulatory advocates who want to turn the dynamic internet into a public utility. Internet service providers are not violating the internet’s openness. Rather, they are investing at record rates to make the internet, better, faster, and cheaper. As Judge Millet noted, the door remains open to resolving the litigation with Congressional legislation. For those on the Hill who want more money for broadband, ending the net neutrality wars should be the first order of business.