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>I mean, it looks to me if FCC has the right to introduce certain rules for Internet providers that Mozilla supposedly liked, in 2015, then they have the right to revert those rules back to pre-2015 state as well? So what is the basis for the legal claim against them?

Basically, the law all of this is based on largely predates the internet. The 2015 rules the FCC pushed forward by saying they were considered "common carriers" under the 1934 Communications act, which mandates that preferential treatment isn't shown, allowing net neutrality. The current decision changed their classification as "common carriers," so they aren't legally required to enforce net neutrality.

Mozilla is arguing that they're clearly common carriers, the court agreed that they were, and changing their status would violate the law.

The political theory around the FCC hasn't been updated sufficiently, they were mandated to deal with telephone lines and much of their control over the internet is based on vague interpretation. This was always going to be decided by the courts or congress, the FCC had no certain power.

> Mozilla is arguing that they're clearly common carriers

Does the law unambiguously define "common carriers" as including ISPs or does it empower FCC to make that definition? If the former, why FCC needed to make that definition at all and why it made it only in 2015 - the law clearly existed long before and so did ISPs?

> This was always going to be decided by the courts or congress, the FCC had no certain power.

I'm still not sure how it works - if FCC has no power to decide it, what happened in 2015? Congress certainly didn't do anything. So who is empowered to decide whether certain company or type of companies is "common carrier" or not? I thought that's FCCs job?

> Does the law unambiguously define "common carriers" as including ISPs or does it empower FCC to make that definition?

The law unambiguously defines that all telecommunications carriers are common carriers, and defined what makes a business a telecommunication carrier. The FCC is charged with applying the law.

> If the former, why FCC needed to make that definition at all

The FCC never made any definition, it only applied the definition in the Act.

> and why it made it only in 2015

Arguably, because the people who wanted neutrality didn't care so much about the statutory basis and were content not to sue the FCC over their failure on classification so long as they were generally advancing neutrality polixy, as they from 2004–2017.

> So who is empowered to decide whether certain company or type of companies is "common carrier" or not? I thought that's FCCs job?

It's the FCCs job, in the first instance, to apply the law, but they do not have free and unreviewable discretion in doing so.

>Does the law unambiguously define "common carriers" as including ISPs or does it empower FCC to make that definition? If the former, why FCC needed to make that definition at all and why it made it only in 2015 - the law clearly existed long before and so did ISPs?

The law defines common carriers in a vague way meant to refer to a telephone provider. The vague way allows one to argue that internet is also included, but it's all on interpretation. Which is why it's in the courts.

>what happened in 2015?

Before 2014, ISPs were not labeled common carriers, but the FCC enforced net neutrality through some other vague part of the bills. In 2014, the courts ruled on a case between Verizon and the FCC, stating they could not grant the privileges of common carriers while not designating them common carriers, ending that. So in 2015, the FCC labeled them common carriers.

> So in 2015, the FCC labeled them common carriers.

Which gives me the impression FCC is empowered to decide what "common carrier" means, thus making both "yes" and "no" decisions with regard to ISPs equally legal. Is there some other law that breaks the symmetry?

The FCC doesn't get to decide, it just isn't currently clear whether they are a common carrier under the laws given. So the FCC chooses what side to back, enacts regulations based on it, and waits for the courts to decide who is right.

The FCC gets to apply the definition written into the law bases on the factual circumstances, and is entitled (under current case law) to significant deference in its application of the law, but it's decisions still need to be grounded in the facts and law.

> The 2015 rules the FCC pushed forward by saying they were considered "common carriers" under the 1934 Communications act

More precisely, “telecommunications carriers” under the 1996 Telecommunications Act, which substsntially revised and restructured the 1934 Communications Act; the 1996 Act specifies that telecommunication carriers are, when acting as telecommunication carriers, common carriers.

> The political theory around the FCC hasn't been updated sufficiently, they were mandated to deal with telephone lines and much of their control over the internet is based on vague interpretation.

Their authority over the internet is based on a law adopted in 1996 whose major motivations included updating the 1934 Act to cover modern communications including the internet.

>Their authority over the internet is based on a law adopted in 1996 whose major motivations included updating the 1934 Act to cover modern communications including the internet.

The 96 update specifically lays out another class, information carriers, meant for things like broadband, that aren't regulated as common carriers. It did not see internet access essentially replacing cable and phone access, and did not explicitly give the FCC the authority currently needed.

> The 96 update specifically lays out another class, information carriers

“information services”.

> meant for things like broadband

Both “information services” and “telecommunication services” (the provision of the latter of which , other than in aggregated form, makes one a “telecommunication carrier”; there is no “information carrier”) have defined criteria in the Act. [0] The core of the dispute will be, really, your claim that “information service” is “meant for things like broadband”; the definitions, BTW, specifically recognize overlap between the basic categories and specifically note that to the extent there is overlap, the “telecommunication service” classification prevails.

[0] https://www.law.cornell.edu/uscode/text/47/153

Right, service, my mistake.

The classification of broadband as an "information service" and not a "telecommunications service" has been shown to be valid in a 2005 Supreme Court case. The law should have been updated to make it clear that ISP's are common carriers after that ruling.

> The classification of broadband as an "information service" and not a "telecommunications service" has been shown to be valid in a 2005 Supreme Court case.

The classification of cable modem service in the specific factual context surrounding the way it was found by the court to be provided, used, and perceived by users at the time as an “information service” by the FCC was upheld in NCTA v. Brand X as sufficiently well-supported by factual evidence referenced in the FCC docket supporting the classification to be allowed to stand given the usual deference due administrative decisions.

The factual circumstances have changed since 2005, the rulemaking record is different, and, the Supreme Court has several new justices, at least one of whom (Neil Gorsuch) has a past judicial record suggesting a much more narrow view of Chevron deference to start with.

I don't understand your point. The current law isn't clear enough, and should have been amended a long time ago to make this a non issue. That this case might work isn't the point, this case shouldn't be necessary.

> The classification of broadband as an "information service" and not a "telecommunications service" has been shown to be valid in a 2005 Supreme Court case.

It's really invalid. What makes sense is to treat Internet services like information services, and actual Internet access service as telecommunication service. I.e. Internet is the medium of transferring information, same as telephone lines are. And services that go through it are already information services (think e-mail provider).

Turning ISPs into information services was their crooked and clearly illogical step to avoiding regulation.

I don't think the other commenters are giving you the whole story. Read the suit. The specific injunction sought under "arbitrary and capricious" is that the FCC is failing to uphold their responsibility based on a 2016 court ruling which pivoted on the decision that classification broadband as a Common Carrier should be upheld - NOT Title II itself. What concerns me about this is that even though they do seem to have a valid argument, if you read the ruling on the case in question[0], it pivots on the court's understanding of Common Carrier. And the court's opinion is not a simple statement of fact. The issue is explored with nuance and deeply wedded to a discussion of anti-trust issues, which is why I remarked elsewhere on this discussion that the FTC should be compelled to step in if abuses happen, which is what sitting Chair Ohlhausen has publicly committed to do[1]

[0] https://www.cadc.uscourts.gov/internet/opinions.nsf/3F95E491... [1]

Four principles of internet usage were codified (but not made law) by the FCC in 2005; these kinda represent what we commonly consider "net neutrality". In 2010 the Open Internet Order was put in place, making these principles law. It mandated three things, no blocking, no unreasonable discrimination, and transparency (disclosure of network management practises, expected performance, terms and conditions).

In 2014 Verizon challenged the order and managed to get the blocking and discrimination parts vacated. So the FCC introduced net neutrality to restore the intent of their order in the first place. There have been other such challenges by ISPs before as well, and various violations.

So, in 2015 we got NN as a replacement for the open internet order which was a legal description of the FCC's principles of network neutrality that harks back to 2005...

NN isn't arbitrary, and seeking to have it restored isn't; it's an attempt at restoring the spirit/intent of legislation, rather than how case law has caused some aspects to be interpreted.

> In 2014 Verizon challenged the order and managed to get the blocking and discrimination parts vacated

"Vacated" means these parts are no longer the law, right?

> NN isn't arbitrary, and seeking to have it restored isn't; it's an attempt at restoring the spirit/intent of legislation

OK, but the courts have decided that legislation of 2010 was not correct, right, isn't that what "vacated" meant above? So, does it mean FCC in 2015 created some rules in the absence of the law, just by its own authority - and if so, why Mozilla argues changing those rules, again by the same authority, in the absence of the law, is against the law?

> So, does it mean FCC in 2015 created some rules in the absence of the law

No, actually, the court striking down the 2010 Open Internet Order as impermissible given the FCCs citation of Title I authority as it's basis specifically pointed to Title II common carrier classification as a basis that would support the kind of rules that the FCC had adopted.

(Why the FCC resisted Title II classification up through the 2014 draft of what became the 2015 order is an interesting question, of course.)

Not your point, but what law is not based on a certain political theory?

Laws codify values. They are always evaluated in the context of what society wants, what the leaders want, what previous law exists, and how it all fits together.

From Wikipedia: The FCC's mission, specified in Section One of the Communications Act of 1934 and amended by the Telecommunications Act of 1996 (amendment to 47 U.S.C. §151) is to "make available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, rapid, efficient, Nationwide, and world-wide wire and radio communication services with adequate facilities at reasonable charges.

It appears as a government agency they have acted against their legally defined mission statement by putting consumers at greater risk of discrimination.

I don't know if this is a legal argument to be made and it doesn't answer your question about Mozilla in particular but still I wonder if there is some legal standing here. The repeal seems to put them odds with their stated purpose as an agency.

I don't see how they are putting customers at risk of discrimination "on the basis of race, color, religion, national origin, or sex". I haven't seen any evidence that FCC intended to tolerate or actually tolerated such discrimination, or even that any of the ISPs ever attempted such discrimination. Could you explain why you think FCC violated this part of the mandate?

My reasoning was that those most affected by NN repeal and potential loss of access (slow access) are those who would not be able to afford ISP price increases for what most reasonable people would consider open and equal Internet access comparable to Internet for people with more means.

This would effectively discriminate against a significant percentage of the population would it not? And put them at further disadvantage.

This sounds like "world ends, poor people hardest hit". Of course, any price increase would affect poor people, but that's not how "discrimination" works - you can't just claim that anything that increases the price of any good is "discriminatory" (otherwise we couldn't have most of regulations, since many of them do increase costs, whatever are their other perceived or real benefits).

And, "poor people" are not enumerated there anyway - it's "on the basis of race, color, religion, national origin, or sex". You could of course claim that since there's more poor people among, say, blacks than whites, it's related to race, but that would extend "discrimination" way beyond point of any usability - you could then claim that producing and selling any expensive good is racist, which is insane.

Different groups of customers can have on average different preferences. ISP content discrimination could be correlated in favor of the preferences of some groups but against the preferences of others. Even if the dont do this on purpose.

Let's assume that facebook pays a lot of money to ISPs to be prioritized. Meanwhile github/gitlab can't afford to make any payment and these websites feel slugish. Let's also assume that the consumers of facebook are mainly female and the consumers of github/gitlab mostly male. ISPs would de facto be discriminating based on gender, even when it is not explicit.

EDIT: This argument should hold as long as consumers groups according to race, color, religion, national origin, or sex have heterogeneous preferences and if the internet provides more than one type of content to be consumed.

> ISPs would de facto be discriminating based on gender, even when it is not explicit.

is discrimination based on preference a real thing that the law can protect you against? my understanding is that you cannot discriminate against things a person has little control over (race, gender, etc.)

i imagine you'd have to prove that preference discrimination was being used specifically as a proxy for the others to have any legal footing and it's a steep hill to climb because some preferences can be more expensive to deliver than others, too.

> some preferences can be more expensive to deliver than others

I don't think that a kb of facebook is significantly more costly to deliver than a kb of github.

ISPs bill by kbs consumed or a flat rate according to bandwidth availability. In the second case, even if some consumer groups use more bandwidth, it is not consumer's fault. ISPs sell you some capacity, but they underprovision and are therefore affected by total consumption. Without underprovisioning, costs should be out of the equation.

However I agree with you that this point is hard to argue in court.