Mozilla Corp. v. FCC

In 2018, the Federal Communications Commission (FCC) (defendant) issued an order classifying broadband as an unregulated “information service” and not a “telecommunications service” under the Communications Act of 1934 (the act). This determination protected broadband from utility-style regulation. The order reversed a 2015 order that had classified broadband as a telecommunications service; the 2015 order, in turn, had reversed a 2002 order declining to classify broadband as a telecommunications service. This 2002 order was upheld by National Cable & Telecommunications Association v. Brand X Internet Services. Under the act, telecommunications service was defined as “the offering of telecommunications for a fee directly to the public . . . .” Information service was defined as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications . . . .” The latter definition included an exception for “any use of such capability for the management, control, or operation of a telecommunications system,” meaning that any such telecommunications management was not an information service. Relying on Brand X, the 2018 order determined that due to the ambiguity of the word “offering” and broadband’s domain-name system (DNS) and caching functionalities, the FCC could classify broadband as an information service to further its policy objective of light-touch broadband regulation. The 2018 FCC determined that the investment and innovation benefits of this classification outweighed the benefits of utility-style regulation. The 2018 order held that because DNS and caching functionalities were directed at and primarily benefited end users, they did not fall within the telecommunications-management exception (TME) in the definition of information services. The 2018 order also preempted state and local governments from adopting any requirements that were inconsistent with the deregulatory order. Mozilla Corporation (plaintiff) petitioned for review of the order.