In my December 2017 Perspectives from FSF Scholars paper "The FCC's Defining Case for Repealing Internet Regulations," I explained that the legal fate of the Restoring Internet Freedom Order (RIFO) would come down to definition of terms in the Communications Act. Indeed, the D.C. Circuit's decision in Mozilla v. FCC upheld the RIFO based on the agency's interpretation of the relevant statutory terms.
My paper explained that the draft RIFO presented a convincing explanation for why broadband Internet access service meets the definition of an "information service" under Title I. Further, my paper explained that the RIFO's reclassification decision was supported by agency precedent and the U.S. Supreme Court's decision in NCTA v. Brand X Services (2005). Also, my paper stated that "if an appellate court applies the deferential Chevron standard of review for agency interpretations of federal statutes, the Restoring Internet Freedom Order’s legal validity should be a foregone conclusion." In fact, Brand X and "Chevron deference" weighed heavily in the D.C. Circuit's decision in Mozilla v. FCC.
Notably, the D.C. Circuit did not uphold the RIFO's express preemption provision. For incisive commentary on that aspect of the decision, see the October 4 Perspectives paper by Professor Daniel Lyons, a Member of the Free State Foundation's Board of Academic Advisers. For a same-day reaction to the decision in Mozilla v. FCC, see Free State Foundation President Randolph May's October 1 Media Advisory.
Posts
