{"id":12953,"date":"2019-10-02T07:06:49","date_gmt":"2019-10-02T11:06:49","guid":{"rendered":"http:\/\/mhgoldberg.com\/blog\/?p=12953"},"modified":"2019-10-02T07:48:42","modified_gmt":"2019-10-02T11:48:42","slug":"mozilla-v-fcc-in-praise-of-a-lighter-touch-approach","status":"publish","type":"post","link":"https:\/\/mhgoldberg.com\/blog\/?p=12953","title":{"rendered":"Mozilla v. FCC: In praise of a lighter touch approach"},"content":{"rendered":"

Yesterday, the US Court of Appeals for the District of Columbia released its decision [186 pages<\/a>, pdf] in Mozilla v. FCC, better known as the challenge to the FCC’s Restoring Internet Freedom order.<\/p>\n

A few excerpts are notable from my initial read. Among the first paragraphs is this summary:<\/p>\n

Petitioners\u2013\u2013an array of Internet companies, non-profits, state and local governments, and other entities\u2013\u2013bring 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 for further proceedings on three discrete points.<\/p><\/blockquote>\n

On the question of broadband investment being inhibited by heavy-handed regulation and being promoted under the FCC’s lighter-touch approach:<\/p>\n

We are, in short, unpersuaded by Petitioners\u2019 and Intervenors\u2019 objections to the Commission\u2019s finding and their implicit claim that uncertainties associated with that finding render arbitrary the Commission\u2019s overall judgment\u2014that there are net public policy benefits from reclassification, based not only on a likelihood of increased investment and innovation but also on the absence of any \u201cdiscernable incremental benefit relative to Title I classification.\u201d <\/p><\/blockquote>\n

The court discusses the economic analyses at length, including a criticism of “Mozilla does not address shortcomings of the Free Press figures, pinpointed by the agency, including for example its failure to exclude investment abroad.”<\/p>\n

As to the benefits of a “light-touch” regulatory approach, <\/p>\n

the 2018 Order\u2019s transparency rules\u2014combined with the deterrent effects of \u201cmarket forces, public opprobrium, and enforcement of the consumer protection laws\u201d\u2014can \u201cmitigate potential harms.\u201d
\n…
\nIn sum, a \u201clight-touch\u201d approach can in the Commission\u2019s judgment secure Internet openness and encourage innovation at lower cost than the Title II Order, while yielding unique benefits. <\/p><\/blockquote>\n

The court’s decision<\/a> is quite readable, as are the 2 concurring opinions and the third appended opinion that concurs in part and dissents in part (with respect to the part of the ruling that vacates the FCC’s preemption of state law. While a number of media accounts seem to suggest that the ruling will allow state-by-state regulation of net neutrality, this is an incorrect reading.<\/p>\n

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Yeah, not exactly. The court actually said that state laws will be assessed on a case-by-case basis. Where the law conflicts with federal policy, it will be preempted by the Supremacy Clause.<\/p>\n

This isn't quite the victory that #netneutrality<\/a> proponents think it is. https:\/\/t.co\/mf7H2wQqE3<\/a><\/p>\n

— Daniel Lyons (@ProfDanielLyons) October 1, 2019<\/a><\/p><\/blockquote>\n