Mozilla Re-Files Suit Against FCC to Protect Net Neutrality
blog.mozilla.org
blog.mozilla.org
By a legal doctrine known as “Chevron deference”, the courts defer to regulatory agencies in choosing between plausible interpretations of the law, instead of choosing an interpretation themselves. From the text of the Act, it is not clear what broadband internet service is. If a “telecommunications service”, it is subject to the very extensive Title II requirements including common carriage. So while the FCC classified it as an “information service” in the early 2000s, it reclassified it as a “telecommunications service” in 2015 in order to impose net neutrality. Both of these classifications were challenged in court and survived scrutiny. Now the FCC has gone back to the “information service” classification. There is no reason to think that the court has changed its mind on the reasonableness of either interpretation of the act, so any suits challenging this would need to allege some procedural deficiency in how the FCC promulgated the new regulation. The plaintiffs are not likely to prevail.
So the courts could now say that Title I doesn't fit at all because they are basically just hired pipes. Chevron deference only goes so far - an agency can't call a river an ocean, for instance. So this FCC is making as much as they can of DNS and ISP caching in its Order to argue ISPs are not just data transporters.
And finally, on Chevron deference - one thing to remember: many conservatives hate it since it hands power to agencies over Congress. If this ever got to the Supreme Court, watch out for Neil Gorsuch, who will have to face the choice of party over his principle hatred of Chevron deference.
>Since the delivery service provided by cable (the broad-band connection between the customer’s computer and the cable company’s computer-processing facilities) is downstream from the computer-processing facilities, there is no question that it merely serves as a conduit for the information services that have already been “assembled” by the cable company in its capacity as ISP. This is relevant because of the statutory distinction between an “information service” and “telecommunications.” The former involves the capability of getting, processing, and manipulating information. §153(20). The latter, by contrast, involves no “change in the form or content of the information as sent and received.” §153(43). When cable-company-assembled information enters the cable for delivery to the subscriber, the information service is already complete. The information has been (as the statute requires) generated, acquired, stored, transformed, processed, retrieved, utilized, or made available. All that remains is for the information in its final, unaltered form, to be delivered (via telecommunications) to the subscriber.
This reveals the insubstantiality of the fear invoked by both the Commission and the Court: the fear of what will happen to ISPs that do not provide the physical pathway to Internet access, yet still use telecommunications to acquire the pieces necessary to assemble the information that they pass back to their customers. According to this reductio, ante, at 22–24, if cable-modem-service providers are deemed to provide “telecommunications service,” then so must all ISPs because they all “use” telecommunications in providing Internet functionality (by connecting to other parts of the Internet, including Internet backbone providers, for example).
[...]
Second, it is apparently possible to sell a telecommunications service separately from, although in conjunction with, ISP-like services; that is precisely what happens in the DSL context, and the Commission does not contest that it could be done in the context of cable. The only impediment appears to be the Commission’s failure to require from cable companies the unbundling that it required of facilities-based providers under its Computer Inquiry.
"After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is “offering” telecommunications. For that simple reason set forth in the statute, I would affirm the Court of Appeals."
Those interested can read the dissent here: https://www.law.cornell.edu/supct/html/04-277.ZD.html
When was the telecommunications service classification upheld by the Supreme Court. Last I remember is that there were some petitions asking the Court to look at it, but I don't recall the Court agreeing to do so, let alone actually ruling, and Google is not turning up anything.
That's inadequately reasoned. The fact that the Supreme Court found an application of the legal definition reasonable on the set of facts presented at one point in time and a different result of applying the same law reasonable on a different set of facts presented at a later time does not mean that a reversion to the older application at a yet later time will necessarily be upheld as consistent with the law based on the facts presented at that time.
> By a legal doctrine known as “Chevron deference”, the courts defer to regulatory agencies in choosing between plausible interpretations of the law, instead of choosing an interpretation themselves.
Chevron deference is not unlimited deference.
What was illegal about the FCC decision?
Mozilla seeks review of the Order on the grounds that it violates federal law, including, but not limited to, the Communications Act of 1934, 47 U.S.C. §§ 151 et seq., as amended, and the Telecommunications Act of 1996, and FCC regulations promulgated thereunder; abdicates the FCC’s statutory mandates; is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; and is otherwise contrary to law
1. https://ffp4g1ylyit3jdyti1hqcvtb-wpengine.netdna-ssl.com/wp-...
That being said I think that net neutrality promotes competition on the internet as a whole, which I think is more impactful and positive, but in this line of thinking is probably a little besides the point.
I don't really think ending net neutrality promotes competition between broadband providers either. I think either way you have entrenched natural oligopolies, just with NN they're not getting in the way of a free and open internet.
Comcast already refused to make infrastructure upgrades so that customers (who were paying Comcast) could get the services they wanted (Netflix). If net neutrality protections are removed, they could just throttle them out of existence.
I, as a one man web dev shop, run about 20 or so websites. Some are info sites, some are SaaS, some are just hobbies. Comcast won't throttle traffic to me because they don't care about someone as small as me -- but if Comcast and all the other ISPs start offering "fast lane service" for cheaper prices that give prime service to big places like Facebook/etc (who can afford to pay the ISPs kickbacks), and degraded or "normal" service to everyone else (me), then I am harmed just the same.
Ultimately, the most relevant flaw in the FCC’s decision may come down to the following:
Broadband has to be defined as either an information service or telecommunications service. The first is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information,” while the second is “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”
I’ll let you take a guess here and just say that to repeal net neutrality, the FCC had to engage in some rather weird semantic gymnastics to arrive at the answer it wanted. That may not hold up in court.
Pardon me legal ignorance. Why this dichotomy?
The Act also defines both terms, and it seems quite clear that broadband service is a telecommunications service, not an information service.
Sounds like they are basically throwing a temper tantrum and grasping at straws. Their argument essentially amounts to "We believe this ruling is so bad that it can't possibly be allowed to go through. This is a clear violation of their statutory mandate."
I find arguments like this truly astounding because no one was claiming they were violating federal law before they implemented the net neutrality regulations. To me, this is eerily similar to the recent DACA ruling where the federal judge required that DACA must be kept in force for the time being while everything is being sorted out. But the reason the judge gave was pretty telling - "The question before the court is thus not whether defendants could end the DACA program, but whether they offered legally adequate reasons for doing so." That sounds pretty much exactly like the argument we are seeing here. In fact, the author of the CNN article I grabbed that judge's quote from also uses the same language about Trump's move on DACA being "arbitrary and capricious".
Searching these phrases online you will find this all relates to the Administrative Procedure Act of 1946. There are two types of judicial review under this act - the arbitrary and capricious review and the substantial evidence review. Obviously, based on these filings, this would fall under the former. That does require a reasonable explanation for the decision. However, given the nature of this topic the justification is obvious - that a huge portion of the country supports the elimination of DACA. That a judge would ignore this is unconscionable. The only other option under this law is to go after the decision as a violation of the separation of powers. However, if it is ruled as such, that also means that Obama's 2012 creation of the DACA program was also a violation of the separation of powers and thus the DACA program would need to be shut down.
Whether you are in favor of net neutrality or against it - in favor of DACA or not, the law needs to be the law. All of this judicial nonsense reeks of political games. And every time judges uphold stuff like this based on these ridiculous, spurious arguments, the Rule of Law continues to degrade and our nation suffers.
The reason judges are using the law to overturn executive actions so much more than before is because no previous administration has been so arbitrary and capricious in their actions.
I will taper my argument with one point - if the recent investigation into Pai that was just announced yields any hard evidence of corruption or anything like that then I would support overturning this ruling on the grounds that his vote was influenced by outside forces. He should then be removed (and possibly go to jail depending on what the evidence shows) and the FCC could vote on this issue again with a new 5th member and we would see if they vote in the same way or not.
The legal standard of "arbitrary and capricious" has to do with adherence to the substantive and procedural requirements of the Administrative Procedure Act, not to the degree of popular support.
>I find arguments like this truly astounding because no one was claiming they were violating federal law before they implemented the net neutrality regulations
First, if they are in clear violation of their mandate, they are breaking the law.
Second, yes, there were people claiming they were breaking the law before the 2015 net neutrality regulations. They were proved correct in the court, which led to the 2015 regulations. This fight has been going on in the courts for over a decade, and there have been numerous attempts to pass a new law dealing with it. Unless a new law is passed, the decision has always been with the courts.
"-- Mozilla booked $323 million in royalties in 2014, up about 7% from the year earlier."
Better?
"Mozilla’s consolidated reported revenue (Mozilla Foundation, Mozilla Corporation and all subsidiaries) for CY 2016 was $520M (US), as compared to $421M in 2015."
https://blog.mozilla.org/blog/2017/11/14/firefox-features-go...
Mozilla is acting as a Google puppet. I'm sure they didn't risk breaking a 5 year deal with Yahoo for nothing.
"The majority of Mozilla Corporation’s revenue is from royalties earned through Firefox web browser search partnerships and distribution deals around the world."
Their revenue is up more than $100 million from last year so they're not exactly dying.
How do you figure they're barely surviving? How does that make them a Google puppet? What exactly is your point through this thread?
If you think it's news that they take Google's money I'm not sure you're qualified to be making these sorts of claims.
The Foundation does not have shareholders. It does have a board that it presumably needs to justify their actions to. Those actions presumably need to align with https://www.mozilla.org/en-US/about/manifesto/ and https://www.mozilla.org/en-US/mission/ better than other uses of the same money to be justified.
So the real question is whether there is something that Mozilla be doing to achieve the goals those two documents described that would be a better investment of money and that it's not already doing. Do you know of something offhand?
[Disclaimer: I work for the Mozilla Corporation, on Firefox, and was not involved in the decision to file this lawsuit in any way.]
Obviously, they're using their Search and Mail monopolies to push those formats, and speaking of search, we've been talking a lot about where our information comes from online and how accurate it is. A better Internet means we need to do better at that, and we need alternatives than a global centralized search engine operated by a corporation with a significant political agenda.
Considering that the carriers are the ones who actually control the gate, they should be focusing on them.
Almost all information travels through and is monitored, filtered, and censored by Google. At multiple levels, including the browser, the operating system, email services, search/discovery, and more. And as Google moves into pushing companies to migrate their data about you to Google, you no longer even have the choice to look for alternatives. For example, RCS messaging is moving text messaging systems over to Google servers, and there's nothing you can do about it, because it's a carrier-level decision.
Google has recently bragged to advertisers it gets 70% of all credit and debit card transaction data in the US. Even if you don't do business with Google or use any Google services, everything ends up feeding back to them through one way or another.
Meanwhile, apart from areas which aren't very profitable to be an ISP, most people have at least some options for ISPs, even if they aren't good options, and most ISP conduct can either be opted out of or circumvented with ease.
If you are worried about censorship, privacy, and fairness on the Internet, and you're worried about ISPs, you're being sorely misled. And guess who's been paying for all the marketing about how bad the ISPs are? https://www.google.com/publicpolicy/transparency.html
Being concerned about ISPs, especially with NN being repealed, is not being misled at all. It's being prudent.
ISPs cannot silence people. If they could, you wouldn't hear everyone whining about net neutrality. But Google can render a site effectively nonexistent from the Internet, and most of your communications goes either to or from a Google server at some point, whether it's a website, an email, a text, or a phone call. Statistically, you likely also use a phone running Google software, use a web browser made by Google, and use Google as your primary email account, which potentially grants them access to all of the data in all of your other accounts. (That's before we add in that Google's now in the ISP game, and both your landline and mobile ISP could also be Google.)
In fact, the only way to convey a message and be confident Google can't intercept it or block it, is to drive to someone and tell them in person.
...Until Google drives your car, too.
Not true in most of the US.
...Source?
This also doesn't account for a variety of other ways to get Internet, which I described above, such as mobile access.
Just a little less than 50% have less than two providers. Two is far short of "many".
> and qualified with a specific speed minimum which is...
...exactly the current regulatory minimum downstream speed of broadband (which is the domain to which net neutrality applied), and, per the current, anti-neutrality FCC, met by the majority of home wireline connections. [0]
[0] https://www.mediapost.com/publications/article/305578/fcc-pr...
In the FCC's numbers, if you have a census tract wherein one household has access to AT&T, one other household has access to Comcast, and none of the other households have any access to any ISP at all, that's a census tract with two providers. I suspect there aren't any census tracts where the situation is quite that extreme, but I suspect many "competitive" census tracts have at least some households that actually only have one option.
That said, at least census-tract aggregation is better than the zip-code level aggregation that preceded it...
The abuse of public right-of-ways, franchise negotiations, and unreasonable permitting processes have much more of a negative impact to broadband expansion.
Fault is irrelevant to the falsity of the claim that broadband providers that have been covered by net neutrality cannot, with the repeal of those rules, effectively censor content because customers have a choice of many such providers.
Whoever's fault it is, the fact is that most customers do not have a choice of many providers.
Note that I'm asking this seriously. If there are things we could be doing that are useful and effective and we aren't doing them, I'd like to know and see if I can poke people to fix that.
But in terms of outright litigation such as the headline, why not cover how Google mandates manufacturers include Chrome as the default web browser on Android, say, over Firefox, a better option that protects it's users better? (Particularly by tying that requirement to get the Play Store, this is one of the most flagrantly illegal business plays in our time.) The "new Microsoft" has become far worse than the old one.
In a more ethereal way, it'd be nice if it felt like Mozilla was pushing harder to lead the way on web standards too. It seems like everything new in web is coming from El Goog, and comes with strings attached (namely, heavily cloud service-dependent design). It's hard to really define this one, but I hope you get the gist.
This all being said, I am super happy with Mozilla's recent work to bring Firefox back to being the best browser, a status I'm not sure I felt it had since 4.0 or so, but one I feel it definitely has earned back.
As far as Google's anti-competitive practices, I know people have been looking at them. I am not a lawyer; it's unclear to me how easy it is to bring private suits about that sort of thing (as opposed to governments bringing antitrust suits).
Fully agreed on the web standards bit. Part of the problem there is simply manpower. Google is throwing a _lot_ of people at standards bodies... :(
I'm assuming you have an understanding of BGP and peering. When peering is established between companies there's a general understanding that peering is free if the data flow in each direction is approximately equal. It's a mutual benefit so both engage in the peering. If however data is predominantly flowing in one direction (early Netflix for example) then companies are eating costs (Netflix's costs) to continue to provide Netflix's data to their customers. If you force ISPs to peer in these sorts of arrangements (Net Neutrality) you are shifting costs from Netflix on to the ISPs. ISPs then need to charge their customers more even if they are not customers of Netflix. This was eventually fixed historically by forcing Netflix to to pay for peering despite the large outrage at the time about Comcast "throttling Netflix" and then "forcing them to pay to stop throttling" which misrepresented what was going on.
This is just one example.
'a general understanding that peering is free ...' - (might this be spelled out in the business service contracts between Comcast and a provider such as Netflix?)
a metric for how to determine and verify by both parties how much data is predominantly flowing and in which direction
And if these details to an agreement had been discussed and agreed upon by some parties that later entered a public debate about them, I might also wonder:
if a metric is determined for how an ISP will route traffic, how will it identify and share how much traffic it can handle, and how much it has received?
What peer relationships is Comcast, or any other ISP, also bound by of similar terms that might connect a candidate business to remote customers that the ISP does not directly service, further along on the internet? How will this also impact the ability of an individual customer or business to make decisions on the terms described above?
Similarly, do you believe Backblaze, cloud backup services, should be able to scream unfairness at those same ISPs?
After all, as asymmetric as flows from Netflix are, then so too are all these ISP customers sending them vast amounts of data?
And don’t think you can use the “but backup providers -knew- this” argument to say they should be eating these costs - guess who else knew?