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Mozilla Corp. v. FCC

United States Court of Appeals for the District of Columbia Circuit

February 1, 2019, Argued; October 1, 2019, Decided

No. 18-1051 Consolidated with 18-1052, 18-1053, 18-1054, 18-1055, 18-1056, 18-1061, 18-1062, 18-1064, 18-1065, 18-1066, 18-1067, 18-1068, 18-1088, 18-1089, 18-1105

Opinion

 [*16]  TABLE OF CONTENTS

I. Broadband Internet Classification

A. The Supreme Court's Decision in Brand X

B. DNS and Caching in the 2018 Order

C. Objections to the Classification

1. "Walled Garden" Reading of Brand X

2. "Telecommunications Management" Exception

3. Adjunct-to-Basic Precedent

4. Functional Integration

II. Mobile Broadband Classification

A. The 2018 Order's Provisions

B. Objections to the Classification

1. Meaning of "Public Switched Network"

2. Whether Mobile Broadband Is an

"Interconnected Service"

3. Whether Mobile Broadband Is the "Functional

Equivalent" of a Commercial Mobile Service

III. Section 706 Authority

IV. Section 257 and the 2018 Order's

Transparency Requirements

V. Arbitrary and Capricious Challenges

A. Effects on Investment and Innovation

B. Harms to Edge Providers and Consumers

1. Reliance [**10]  on the Transparency Rule

2. Reliance on Competition

3. Reliance on Antitrust and Consumer

Protection Laws

C. Public Safety

D. Reliance Interests

E. Pole Attachments

F. Lifeline Program

G. Cost-Benefit Analysis

H. Data Roaming Rates

I. Procedural Challenges

VI. Preemption

A. Express and Ancillary Authority

B. The Commission's Asserted Sources of Authority

1. Impossibility Exception

 [*17]  2. Federal Policy of Nonregulation

3. Case Precedent

C. Conflict Preemption

VII. Conclusion

Per Curiam: In 2018, the Federal Communications Commission adopted an order classifying broadband Internet access service as an information service under Title I of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat 56 ("the Act"). See In re Restoring Internet Freedom, 33 FCC Rcd. 311 (2018) ("2018 Order"). In so doing, the agency pursued a market-based, "light-touch" policy for governing the Internet and departed from its 2015 order that had imposed utility-style regulation under Title II of the Act.

Petitioners--an array of Internet companies, non-profits, state and local governments, and other entities--bring a host of challenges to the 2018 Order. We find their objections unconvincing for the most part, though we vacate one portion of the 2018 Order and remand [**11]  for further proceedings on three discrete points.

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940 F.3d 1 *; 2019 U.S. App. LEXIS 29480 **; 2019 WL 4777860

MOZILLA CORPORATION, PETITIONER v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS; CITY AND COUNTY OF SAN FRANCISCO, ET AL., INTERVENORS

Subsequent History: Rehearing denied by Mozilla Corp. v. FCC, 2020 U.S. App. LEXIS 3727 (D.C. Cir., Feb. 6, 2020)

Rehearing denied by, En banc Mozilla Corp. v. FCC, 2020 U.S. App. LEXIS 3726 (D.C. Cir., Feb. 6, 2020)

Prior History:  [**1] On Petitions for Review of an Order of the Federal Communications Commission.

In re Restoring Internet Freedom, 33 F.C.C.R. 311, 2018 FCC LEXIS 44 (F.C.C., Jan. 4, 2018)

CORE TERMS

broadband, regulation, information service, preemption, mobile, Internet, caching, providers, network, consumers, Brand, communications, telecommunications, classification, users, offering, switched, internet access, preempt, capability, classified, transmission, Petitioners', FCC, telecommunications service, cable, carriers, technological, transparency, intrastate

Communications Law, Federal Acts, Telecommunications Act, Coverage & Definitions, Regulators, US Federal Communications Commission, Authorities & Powers, Administrative Law, Judicial Review, Standards of Review, Deference to Agency Statutory Interpretation, Business & Corporate Compliance, Communications Law, Federal Communications Act, Remand & Remittitur, Agency Rulemaking, Civil Procedure, Justiciability, Standing, Injury in Fact, Agency Rulemaking, Rule Application & Interpretation, Arbitrary & Capricious Standard of Review, Administrative Record, Reviewability, Preservation for Review, Standards of Review, Jurisdiction, Separation of Powers, Legislative Controls, Explicit Delegation of Authority, Constitutional Law, Supremacy Clause, Federal Preemption