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Mozilla sued in August alleging that the FCC unlawfully overturned the rules of network neutrality of 2015, notably by "fundamentally[ing] how does internet access work. The FCC has filed its official response and, as you can imagine, has doubled its number of fundamental falsehoods.
The continuation of Mozilla, which you can read here or incorporated at the bottom of this message, was sort of a cluster bomb of allegations aimed at the FCC's decision for technical, legal and procedural reasons. These are not new telltale arguments, say advocates of Internet neutrality for years.
There are at least a dozen separate allegations, but most fall into two general categories.
- That the FCC mistakenly qualifies broadband as an "information service" rather than a "telecommunication service". There is a long story behind this that I documented in the "Impossible" series. The logic behind this determination has been refuted by virtually all technical authorities and is simply wrong. This removes many justifications for canceling the previous rules and installing new ones.
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That by not taking into account consumer complaints or failing to adequately study the state of the industry, the federal protections and the effects of the rules, the FCC's order is "arbitrary and capricious." And therefore can not be considered legally enforced.
The FCC's responses to these allegations are not surprising either. Most of the big regulatory documents such as Restoring Internet Freedom are not made up of the rules but the justification of them. The FCC has therefore taken preventive measures in its proposal by identifying potential objections (such as those of Mozilla) and spreading them by various means.
The fact that their counter arguments on broadband classification are not new is in itself a little surprising. A group of Circuit DC judges rejected these same arguments in 2015. In fact, Justice Brett Kavanaugh, recently appointed to the Supreme Court, is distinguished by this decision by deceiving himself on all counts and receiving a embarrassing intellectual head shot from him. Judge Srinivasan, better informed peer.
With respect to the arbitrary and capricious allegation, the FCC merely recalls that all of its decisions were reasonable and justified at the time. Mozilla's arguments are not seriously taken into account; For example, when Mozilla pointed out that the FCC had essentially assumed that thousands of pages of comments were irrelevant without having reviewed them, the FCC responded that it "had made a reasonable decision not to include in the largely unverified consumer complaints ".
These statements are not the end of the line; there will be more legal wrangling, amicus briefs, public statements, amended filings, etc., before this case is decided. But if you want a good summary of the tough legal arguments against the FCC and a vexing rejection, these two documents will be used for reading the weekend.
The Mozilla costume:
Mozilla v FCC Filing by TechCrunch on Scribd
Counter-arguments of the FCC:
Mozilla v FCC Counterfiling from TechCrunch on Scribd
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