The Digital Justice Foundation has asked the U.S. Court of Appeals for the District for an en banc review of a decision by a three-judge panel of the court that largely upheld the FCC’s restoring Internet freedom (RIF) order adopted in 2017 and released in 2018.
Specifically, the Digital Justice Foundation, which was an intervenor in “Mozilla Corp. v. FCC” (case 18-1051), seeks review of the three-judge panel’s upholding of the transparency rule adopted in the 2017 RIF order.
Earlier this month, the three-judge panel upheld the 2017 order’s reclassification of broadband Internet access service as an information service subject to Title I of the Communications Act and its reclassification of mobile broadband service as a private mobile service, as well as most of the rest of the order, including its transparency provisions, which left in place some of the transparency requirements of the 2015 order and imposed specific transparency requirements on ISPs, directing them to disclose if they engage in blocking, throttling, paid prioritization, or prioritization of affiliate content or services (TR Daily, Oct. 1).
The DJF said that the panel “plainly misstated the DJF’s position” in arguing that the 2017 order’s transparency was arbitrary and capricious “because of internal inconsistencies and faulty logic.”
The panel “misattributed to the DJF a position neither held nor argued for in its Briefs: that the Commission ‘should have retained aspects of the rule contained in a 2010 Order issued by the Commission,’” the DJF said.
“Given its misreading of the DJF’s position, the Panel did not address two arguments explaining why the Order’s 2018 transparency rule fails to meet certain doctrinally well-defined parameters of this Circuit’s arbitrary-and-capricious standard of review. These arguments are supported by Supreme Court authorities or a multitude of D.C. Circuit authorities, respectively,” the DJF said.
The RIF order “deems transparency alone to be a sufficient regulatory response. It concludes that the Internet ‘conduct rules are unnecessary because [of] the transparency requirement,’” the DJF noted.
The RIF order cited a number of “audiences” for transparency, such as the Internet community, independent engineers, consumer watchdogs, and consumer protection agencies, who could use transparency to identify problematic behavior, the DJF said.
“Yet in determining the scope of its transparency rule, the 2018 Order contradicts its later reliance on this variety of audiences,” the DJF said. It pointed to the FCC’s rationale for eliminating technical disclosure requirements adopted in the 2015 open Internet order “that nowhere considers experts,” but instead says that “consumers have little understanding of what packet loss means.”
“The 2018 Order fails to see how ‘esoteric metrics’ could be valuable to ‘consumers or entrepreneurs’—without asking the value of those metrics to experts,” the DJF said.
The DJF also lists a number of “major” differences between the 2017 transparency rule and the 2010 transparency rule that the RIF order purports to be returning to, including the 2010 order’s treatment of its listed disclosures as illustrative, whereas the 2017 order treats its listed disclosures as exhaustive.
The D.C. Circuit should rehear the case en banc because “the transparency rule has ongoing nationwide importance,” “the panel opinion misstated the Digital Justice Foundation’s position about the transparency rule,” and “the transparency rule is arbitrary and capricious under this court’s precedents and [the Supreme Court’s] ‘Fox’ [decision],” the DJF said. —Lynn Stanton, [email protected]
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