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FCC Faces Off in Net Neutrality Lawsuit Against Consumer Advocates and Internet Giants

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Oral arguments began Friday in the case of Mozilla v. FCC, a lawsuit brought by a wide range of advocacy groups and trade organizations representing some of the nation’s largest internet companies, which all seek to vacate the vote to repeal net neutrality pushed through by the Federal Communications Commission in late 2017.

At the heart of the case is the question of whether the FCC was within its rights to overturn the Open Internet Order, which it passed in 2015 under the Obama administration. The order implemented rules against blocking, throttling, or paid prioritization—so-called fast lanes—by mobile and fixed broadband providers. It accomplished this by reclassifying broadband as a “telecommunications service” under Title II of the 1934 Communications Act, and in so granted itself the authority to regulate broadband service nationwide.

The case is brought before U.S. Court of Appeals for the District of Columbia, where it was transferred last year from the 9th Circuit, which had won a multi-district lottery to hear the case. The D.C. Circuit was the chosen venue ultimately due to its history of considering virtually identical issues in prior proceedings. The court previously upheld the 2015 Open Internet Order, finding it lawful and justified by the arguments of the net neutrality advocates.

The groups opposing the FCC include a hodgepodge of tech companies and consumer advocacy groups, as well as state and local officials—among them: the Mozilla Corporation; Etsy; Free Press; Public Knowledge; the National Hispanic Media Coalition; the Open Technology Institute; the Center for Democracy & Technology, and others. Twenty-two states and the District of Columbia have also joined the petitioners.

“Nothing has changed since the 2015 rulemaking but the leadership of the FCC,” said Lisa Hayes, general counsel for the Center of Democracy & Technology. “The FCC lacks compelling evidence justifying its 2018 order, and I expect the DC Circuit will find that the FCC’s actions were arbitrary and capricious.”

Matthew Berry, the FCC chief of staff, meanwhile, said that the Supreme Court has “already affirmed the FCC’s authority to classify broadband as a Title I information service, and we have every reason to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today.”

After taking control of the FCC in early 2017 with President Trump’s appointment of Ajit Pai as chairman, Republicans maintained a 3-2 majority on the panel, which allowed them to push through the repeal, despite overwhelming opposition by the American public. Pai’s arguments in favor of pushing through the repeal involving claiming the Obama-era rules had stifled innovation, and that, by minimizing his own agencies ability to regulate the telecom industry, he would help spur a new era of investment in the nation’s broadband infrastructure.

But there appears to be two key flaws in Pai’s reasoning, one of which has only recently become demonstrably evident. First, the net neutrality rules did not hamper investment and the companies he claimed were being suffocated by “heavy-handed” regulations admitted as much. Secondly, Pai’s rollback hasn’t spurred much of anything. As long-time telecom reporter Karl Bode wrote for Motherboard last week: “Network investment is down, layoffs abound, and networks are falling apart.”

Newly appointed FCC Commissioner Geoffrey Starts recently accused Pai of ignoring evidence and hastily abandoning “the carefully crafted, common sense Open Internet framework” established over three years ago. “In the process,” he said, the FCC “ignored the will of millions of people who made their support for a free and open Internet crystal clear.”

Read full article @ https://gizmodo.com/fcc-faces-off-in-net-neutrality-lawsuit-against-consume-1832269448

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