The Federal Communications Commission meeting room, with an empty chair in front of the FCC seal and two United States flags.
Enlarge / The Federal Communications Commission seal hangs inside a meeting room at the headquarters ahead of an open commission meeting in Washington, DC, on Thursday, December 14, 2017.

Getty Images | Bloomberg

Mozilla and other organizations today appealed the court ruling that upheld the Federal Communications Commission’s repeal of net neutrality rules, arguing that the FCC’s claim that broadband isn’t telecommunications should not have been accepted by judges.

The FCC repeal was upheld in October by a three-judge panel at the US Court of Appeals for the District of Columbia Circuit. The court had some good news for net neutrality supporters because it vacated the FCC’s attempt to preempt all current and future state net neutrality laws. But Mozilla and others aren’t giving up hope on reinstating the FCC rules nationwide.

The Mozilla petition filed today asks for an en banc rehearing of the case involving all of the DC Circuit judges. Mozilla is probably facing an uphill battle because the three-judge panel unanimously agreed that the FCC can repeal its own net neutrality rules.

Joining Mozilla in the appeal were online companies Etsy and Vimeo, industry lobby group Incompas, and the Ad Hoc Telecom Users Committee, which represents business users of communications services. The case is known as Mozilla v. FCC.

Another appeal was filed today by several advocacy groups, namely New America’s Open Technology Institute, Free Press, Public Knowledge, the Center for Democracy & Technology, the Benton Institute for Broadband & Society, the Computer & Communications Industry Association, and the National Association of State Utility Consumer Advocates. Still another appeal was filed by the National Hispanic Media Coalition.

Mozilla wrote in a blog post today:

Mozilla’s petition focuses on the FCC’s reclassification of broadband as an information service and on the FCC’s failure to properly address competition and market harm. We explain why we believe the court can in fact overturn the FCC’s new treatment of broadband service despite some of the deciding judges’ belief that Supreme court precedent prevents rejection of what they consider a nonsensical outcome. In addition, we point out that the court should have done more than simply criticize the FCC’s assertion that existing antitrust and consumer protection laws are sufficient to address concerns about market harm without engaging in further analysis. We also note inconsistencies in how the FCC handled evidence of market harm, and the court’s upholding of the FCC’s approach nonetheless.

Judge blasted FCC but upheld repeal

Circuit Judge Patricia Millett, one of the three judges who decided the case, wrote that the FCC’s justification for classifying broadband as an information service instead of a telecommunications service “is unhinged from the realities of modern broadband service.” But the FCC has broad authority to classify offerings as either information services or telecommunications, as long as it provides a reasonable justification for its decision, and judges said they had to leave the net neutrality repeal in place based on US law and Supreme Court precedent.

Obviously, consumer advocacy groups are arguing that judges didn’t have to give the FCC so much deference.

“Although the court came to the right conclusion on some key issues, such as the FCC’s lack of authority to preempt state net neutrality rules, in other ways it gave the FCC the benefit of the doubt too many times,” Public Knowledge Legal Director John Bergmayer wrote today. “While agencies should be given deference where appropriate, they do not have the authority to rewrite the law or come to illogical, results-driven conclusions.”

The FCC argued that broadband isn’t telecommunications because Internet providers also offer DNS (Domain Name System) services and caching as part of the broadband package. Millett wrote that this interpretation “confuse[s] the leash for the dog,” but ruled in the FCC’s favor because of the Supreme Court’s 2005 decision in the Brand X case, which let the FCC classify cable broadband as an information service. Brand X “compels us to affirm as a reasonable option the agency’s reclassification of broadband as an information service based on its provision of Domain Name System (‘DNS’) and caching,” Millett wrote.

Circuit Judge Robert Wilkins agreed with Millett’s assessment. Senior Circuit Judge Stephen Williams didn’t join Millett and Wilkins in this line of criticism, but he joined them in upholding the repeal. Williams wanted to uphold the other big portion of the FCC order, too, as he dissented from a 2-1 decision to vacate the FCC’s preemption of state laws.

The advocacy groups’ petition argued that judges “misconstrued Brand X as precluding any judicial review of the reasonableness of classifying a service that overwhelmingly offers telecommunications as an information service simply because it includes DNS and caching.”

If the court decides not to grant the request for a re-hearing of the case, petitioners could appeal to the Supreme Court.

The FCC could also appeal, since judges ruled against the commission on its attempt to preempt state laws. Today is the deadline for filing appeals, and we’ll update this story if the FCC submits one.