President Joe Biden is nominating open internet advocate Alan Davidson, a longtime executive with Mozilla and Google before that, to head up the National Telecommunications and Information Administration as assistant secretary for communications and information.

NTIA is currently headed by acting administrator Evelyn Remaley.

Also: Biden Renominates Jessica Rosenworcel to FCC, Gigi Sohn Gets Nod

NTIA, which is under the Department of Commerce, is the president’s chief telecom policy adviser and has been given an expanded role in the administration's multibillion dollar subsidy effort to achieve universal broadband service. To that end, NTIA has created the Office of Internet Connectivity and Growth and the Office of Minority Broadband Initiatives.

Davidson is currently senior adviser at the Mozilla Foundation, billed as “a global nonprofit that promotes openness, innovation, and participation on the internet.” Before that he was VP or global policy, trust and security with Mozilla, which was the lead legal challenger to the FCC’s decision under Republican leadership to eliminate net neutrality rules.

In the Obama administration — which is now referred to by the White House as the Obama-Biden administration — Davidson was the Commerce Department's first director of digital economy.

He is also a former member of Google's policy shop, heading up government relations in Washington for seven years. He is also a nonprofit leader, having been the director of New America’s Open Technology Institute.

Washington players weighed in on the pick.

Of Davidson, NCTA-The Internet & Television Association president Michael Powell said: “[He] will play a critical role in the design of policy that will promote continued investment and innovation in wired and wireless broadband networks — including the growth of licensed and unlicensed platforms — and in supporting Congress’ clear direction to build next generation networks in unserved and underserved areas.”

“[W]e congratulate Alan Davidson on his nomination to serve as Assistant Secretary of Commerce for Communications and Information and as Administrator of the National Telecommunications and Information Administration,” said Charter EVP Catherine Bohigian. “Mr. Davidson has served as a strong public interest advocate on behalf of digital consumers.”

“NTIA is a central driver of the government’s overall connectivity work — touching the internet, 5G, spectrum, cybersecurity and, of course, broadband deployment,” said USTelecom president Jonathan Spalter. "In Alan Davidson, President Biden has nominated a person with a range of technology and innovation experience, and a perspective that crosses the public, private and non-profit spheres. We wish him luck in his confirmation and look forward to deepening our work with NTIA and the Commerce Department to bring the benefits of broadband connectivity everywhere.

“AT&T congratulates Alan Davidson on his nomination to lead the National Telecommunications and Information Administration (NTIA)," said Ed Gillespie, senior EVP at AT&T. "Commerce Secretary Gina Raimondo is putting together a strong leadership team and knowing Alan’s impressive work on policy issues in the past, he will have a positive impact on the Commerce Department’s ambitious agenda. We look forward to working with NTIA as it works on public priorities such as broadband access and adoption, 5G leadership and open RAN deployment, spectrum management, and public safety.”

“Alan Davidson occupies rarified air among Internet and technology policy experts,” said Matt Polka, president of ACA Connects, which represents smaller, independent cable operators. “As an experienced executive leader, he is ideally qualified to build and lead NTIA's team as the agency tackles critical priorities, such as administering funds for various broadband adoption and deployment programs and setting policy for federal agency use of wireless spectrum.”

Polka urged Senate confirmation “without delay.”

A handful of prominent edge players including Mozilla and Reddit have asked the FCC to reinstate the net neutrality rules, but that is almost certainly not going to happen until there is a Democratic majority on the commission.

In a letter dated March 19, the above two joined by ADT, Dropbox, Eventbrite, Vimeo and Wikimedia, wrote acting chair Jessica Rosenworcel saying those fundamental safeguards--rules preventing blocking, throttling and paid prioritization, are critical to preserving a free and open internet.

Their support is no surprise since they backed the rules ultimately eliminated by the Republican FCC under chairman Ajit Pai. Mozilla, for example, was the lead challenger to Pai's Restoring Internet Freedom order deregulating internet access.

But what would be a surprise is if Rosenworcel tried to restore the rules while there is still a 2-2 political tie on the commission. Both Republicans are on the record as having issues with net neutrality rules.

It is unclear when the FCC will get a third Democrat, either a new chair if President Joe Biden does not decide to make Rosenworcel his choice for chair, or a third Democratic commissioner if he does.

Either way, the nomination has to be made, then the Senate has to vet and vote the nominee.

The longer Rosenworcel is in the chair, the more likely she will get to remove the "acting" from her title, said one veteran FCC transition watcher.

One possibility for the holdup could if the Congressional Black Caucus is still lobbying for current Democratic Commissioner Geoffrey Starks to be named chair. It would unusual for Starks to leap-frog Rosenworcel, who is the senior Democrat had has strong Hill backing as well, but the caucus came out in support of his chairmanship.

If Rosenworcel does get the chair, top candidates for the third Democratic seat include Edward “Smitty” Smith, a partner at law firm DLA Piper who has experience with overseeing multibillion-dollar broadband subsidies at the National Telecommunications & Information Administration and at the FCC, as an adviser to the Broadcast Incentive Auction Task Force, and Anna Gomez of D.C. powerhouse law firm Wiley (formerly Wiley Rein).

Mozilla and others that had challenged the FCC's deregulation of internet access in the 2017 Restoring Internet Freedom order have decided not to take that challenge to the Supreme Court, which moves the issue to the states that implemented their own net neutrality regs in response to the FCC's deregulation. 

Related: Net Neutrality Focus Shifts to States, Hill

The deadline was Monday (July 6) and Mozilla signaled there would be no challenge in the high court. 

"After careful consideration, Mozilla—as well as its partners in this litigation—are not seeking Supreme Court review of the D.C. Circuit decision," the company blogged. "Even though we did not achieve all that we hoped for in the lower court, the court recognized the flaws of the FCC’s action and sent parts of it back to the agency for reconsideration. And the court cleared a path for net neutrality to move forward at the state level. We believe the fight is best pursued there, as well as on other fronts including Congress or a future FCC. 

Back in October 2019, a three-judge panel of thethe U.S. Court of Appeals for the D.C. Circuit unanimously upheld the FCC's reclassification of internet access as a Title I information service and eliminating the rules against blocking, throttling and paid prioritization, though it required the FCC to better explain the impact of that decision on emergency communications, infrastructure buildouts and broadband subsidies.  

Mozilla et al. sought full court review of the decision but that was denied, so the Supreme Court was the last stop in the appeal process. Among others petitioning the court for re-hearing were the National Hispanic Media Coalition (NHMC) and the Benton Institute for Broadband and Society. 

Several states had implemented their own net neutrality rules in response to the FCC's elimination of its own, but challenges in California and Veromont were held in abeyance until the federal challenge was exhausted, as it has now been.  

"The fight for net neutrality will continue on," said Mozilla. "The D.C. Circuit decision positions the net neutrality movement to continue on many fronts, starting with a defense of California’s strong new law to protect consumers online—a law that was on hold pending resolution of this case. Other states have followed suit and we expect more to take up the mantle. We will look to a future Congress or future FCC to take up the issue in the coming months and years." 

California actually went beyond the 2015 Open Internet rules the current FCC deregulated, though its law has yet to go into effect after the DOJ sued and the sides took a breather to wait for this appeal decision, released on Oct. 1.

"We are still evaluating our options regarding the state laws that will become effective in 30 days," said NCTA-the Internet & Television Association."

Some state governors have also issued net neutrality-related executive orders.

While the FCC, under current chairman Ajit Pai, had pre-empted any state efforts to reregulate in the 2017 Restoring Internet Freedom order, the D.C. Circuit said the commission had exceeded its authority, and could only pre-empt state efforts on a case-by-case basis under the “conflict pre-emption” provision that covers regulations that conflict with federal laws.

The FCC still has to justify to the D.C. Circuit its assertion that its deregulatory moves would not adversely affect public safety, pole-attachment regulations and Lifeline broadband subsidies. 

Of course, if a Democrat wins the White House in 2020, a new chairman could try and justify yet another 180-degree turn on Title II.

CTIA declined comment on the court decision, but pointed to this statement it made about the law back in February: "Maine’s approach of regulating the collection and use of data by internet service providers only, and not the practices of other companies, including the largest internet companies, data brokers, and others that collect, use, and monetize even more data than ISPs, leaves a gaping hole in the law, is unconstitutional, preempted by federal law, and should be struck down by the courts.”

FCC chairman Ajit Pai Pushed back hard on Wednesday (March 11) against suggestions by Democratic commissioner Jessica Rosenworcel that he was playing "hide the ball" with the way the FCC issues its request for comment on the remand of some of its net neutrality dereg order.

Related: FCC Seeks Comment on Restoring Internet Freedom Remand

That came at a House Financial Services Subcommittee budget hearing featuring both Pai and Rosenworcel as witnesses.

Rep. Sanford Bishop (D-Ga.), citing a 2010 law requiring federal agencies to communicate in "plain language" the public can understand, pointed to the headline on the FCC's request for comment on a federal court's directive to better address the FCC net neutrality deregulation on public safety, the regulation of pole attachments, and its Lifeline broadband/phone subsidy program. That headline: "WCB6 Comment on Discreet Issues Arising from Mozilla Decision."

The court did uphold Pai's elimination of net neutrality rules, but said it had not sufficiently explained its impact on the above.

Bishop said the headline didn't seem to be plain language and he didn't have any idea what the FCC was requesting comment on, while Rosenworcel called it "hiding the ball" from the American public.

Pai countered that the language came from career staffers. He said "one could always take a shot from the peanut gallery along those lines," apparently putting Rosenworcel rather than Bishop in that gallery. He suggested that the headline was something that had been delegated. He said when you have the responsibility of running an agency, when responding to a remand on particular, discreet issues, "I rely not on political judgments but on the judgment of our career staff in the office of general counsel and the Wireline Competition Bureau."

He said it had been drafted to respond to those particular issues that was what they had approved and he wasn't going to second guess them.

Rosenworcel said they were accountable to the public, which had expressed great interest in the issue, and that when a court asked it to revisit some parts of deregulatory decision, "we put it in legalese."

Comcast is lobbying the U.S. government to stop Google from implementing a plan that would make it harder for internet service providers to see their customer’s browsing history.

Last week, Vice-ran website Motherboard reported that it had intercepted a lobbying presentation, allegedly prepared by Comcast and other ISPs, objecting to the plan, which also involves Mozilla, maker of the popular Firefox browser.

Under the plan, Google and Mozilla would encore the encryption of DNS data made using the Chrome and Firefox browsers, respectively.

Privacy activists have praised the move. But according to Motherboard, ISPs including Comcast say, “This change would make a fundamental shift in the decentralized nature of the internet’s architecture and give one provider control of internet traffic routing and vast amounts of new data about customers and competitors.”

The ISP lobbying presentation added, “The unilateral centralization of DNS raises serious policy issues relating to cybersecurity, privacy, antitrust, national security and law enforcement, network performance and service quality (including 5G), and other areas.”

Responded Mozilla senior director of trust and safety, Marshall Erwin, to Motherboard: "The slides overall are extremely misleading and inaccurate, and frankly I would be somewhat embarrassed if my team had provided that slide deck to policy makers.”

Comcast reps didn’t immediately respond to MCN’s inquiry for comment this morning.

However, last week, following publication of the Motherboard report, the cable company put out a statement: “Where you go on the Internet is your business, not ours. As your internet Service Provider, we do not track the websites you visit or apps you use through your broadband connection. Because we don't track that information, we don't use it to build a profile about you and we have never sold that information to anyone.”

It may have been Feb. 1, but it was Groundhog Day for the U.S. Court of Appeals for the D.C. Circuit Friday as it once again heard oral arguments from the government and net neutrality activists, by turns challenging and defending, the FCC's latest approach to regulating the internet, or in this case deregulating it. 

The same court has weighed in multiple times on the issue, but will be doing so once again following that argument, likely sometime in the second quarter, in this latest rule challenge (Mozilla vs. FCC).

It was truly a marathon, and then some, with time limits thrown to the winds as judges peppered the lawyers with questions and follow-ups for almost five hours. The importance of the issue and of the court's ultimate decision was reflected in the scope and breadth of the questions and the various legal and technical technicalities getting the once and twice-over.

At stake in the case is whether the FCC was within its authority to essentially deed oversight of the Internet of everything to the Federal Trade Commission and Justice Department by reclassifying internet access as a Title I service not subject to common carrier rules, in the process eliminating the rules against blocking, throttling or paid prioritization of that access. The court does not have to get into the merits of the FCC's deregulation versus regulation call, only whether the FCC was or was not arbitrary and capricious in reversing the previous FCC's opposite view of the marketplace and need for regulation.

Issues up for discussion included whether the FCC ignored evidence countering its conclusions, whether it can reclassify mobile broadband, and whether it can preempt state and local efforts to regulate the net in the wake of that deregulatory Restoring Internet Freedom order.

The judges were tough on both sides, though the caveat is that judges sometimes play devil's advocate.so it is hard to say who got the worst of it. All three judges mixed it up with Mozilla et al., while Millett dominated the FCC questioning.

Or, put another way, had Punxsutawney Phil been in the courtroom, he would have had a hard time determining whether it would be an early spring or more winter for FCC-enforced bright-line net neutrality rules. 

Mozilla, INCOMPAS, and a host of others, from activist groups to state governments, are challenging the FCC's decision in the Restoring Internet Freedom order to classify ISPs as Title I information services rather than Title II telecom services subject to some common carrier regs. The order eliminated rules against blocking, throttling and paid prioritization.

The FCC argues its order deregulating internet access simply restored the longstanding regulatory classification of broadband internet access service as an “information service” under Title I of the Communications Act", a call upheld by the Supreme Court in the Brand X decision--and return to a "light touch"--critics call it "hands off"--regulatory approach.

Central to the case is that 2005 Supreme Court decision (National Cable & Telecommunications Association v. Brand X Internet Services) upholding an earlier FCC's authority to classify internet access services as information services not subject to mandatory access to their networks by competitors. The Supreme Court concluded the FCC should be accorded so called Chevron deference to that decision, which means the tendency to defer to an agencies expertise in interpreting an ambiguous statute.

The arguments were heard by a three-judge panel of the court, Judges Robert Wilkins, Patricia Millett and Stephen Williams, with Judge Millett presiding. 

Related: GOP FCC KOs Tutle II

Back in May 2017, Williams was on the panel that declined to reverse the 2015 Open Internet Order's bright-line rules against blocking, throttling and paid prioritization--those are the rules the RIF rolled back. That panel did not weigh in on whether that was the right approach to regulating the 'net, only that the FCC was not arbitrary and capricious in concluding it was. But Williams did dissent from applying the Title II-based rules to mobile broadband.

Representing Mozilla et al., was Pantelis Michalopoulos of Michalopoulos, Steptoe & Johnson, who is quite familiar with the net neutrality rules adopted under Tom Wheeler since he defended them when they were challenged in the same court.

Mozilla et al.

In his argument, Michalopoulos said that the order was a "stab in the heart of the Communications Act," telling the court it would end the FCC's oversight "of the main communications service of our time," a marketplace that lacked the competition to make the FCC's transparency requirements a sufficient governor of conduct. He said that when classifying ISPs, the FCC had to answer the question of whether, say, AT&T is offering telecommunications when it delivers Netflix, and it did not.

He said the FCC was just taking regulated parties' word for it, rather than look at a single consumer complaint about their service, much less the 50,000 complaints lodged. But he was asked by Millett whether even 50,000 would provide insight into the many millions of broadband consumers.

Judge Millett said that once the FCC has concluded internet access is an information service, hasn't it necessarily found ISPs are not providing a telecom service. Michalapoulos said no. Millett said it sounded like the services were mutually exclusive to her. 

Of the FCC's argument that internet access is not a telecommunications service, Michalopoulos waxed poetic in rebuttal, saying that it was like a surrealist painting that shows a pipe and says "this is not a pipe," or asking the sun to rotate about the moon and the earth. 

The judges to a man and woman probed him on why the FCC was not within its authority to change its mind and reverse the previous Title II classification. He said it could, but only if it had explained, and considered and provided evidence of why, and that it had not sufficiently done so. 

The judges suggested that Mozilla et al. in their argument continued to turn earlier rulings of the court deferring to the FCC--upholding the old rules for instance--into affirmative rulings by the court, which they were not. 

Michalopoulos said the FCC has ignored evidence that providers have the incentive to hurt edge providers and the ability to do so with impunity absent the rules, another argument for why the decision was arbitrary and capricious and should not get deference from the court. "There is ample evidence in the record that they can get away with impunity because subscribers don't leave when they do block, throttling and degrade," he said, "such as when Time Warner and Comcast throttled Netflix." 

There is some question on who was doing that throttling, however, with some ISPs pointing to Netflix itself and suggesting it was doing the throttling.

Also arguing for the intervenors, Kevin Russell, Goldstein & Russell, who contended that the FCC pointed to consumer protection and antitrust laws as a backstop in the absence of the rules against blocking and throttling, but without the analysis establishing how that would be the case, meaning the decision was arbitrary and capricious under the Administrative Procedure Act.

Judge Williams asked whether he wanted the FCC to write a treatise on competition law. He said no, but that the FCC had an obligation under the Administrative Procedures Act to conduct an analysis of things like tacit collusion absent the rules, but did not. 

Judge Wilkins pointed out that the FCC did do analysis on the transparency rules it imposed as part of the order. Russell said that a big problem is that no matter what practices the ISP discloses as part of the transparency requirement, if there is insufficient competition, a consumer has no alternative. Wilkins conceded that could be an issue, then joked that of course everyone reads those online disclosures anyway. Judge Millett also suggested that the transparency disclosure about blocking, throttling or paid prioritization is being asked to carry a lot of water and wondered if it was allowed to be a graph at the end of a long list of other disclosures. 

What About Public Safety?

Attorney Danielle Goldstein of the City of Santa Clara, among the five attorneys arguing against the order, said the FCC did not sufficiently take public safety implications of its order into account, like putting public safety at the back of the line due to paid prioritization.

Judge Wilkins said he was not suggesting that had ever happened. Gold conceded there was not evidence in the record, but that the implications of paid prioritization were not always visible. He asked if the argument was even ripe for consideration given that they did not know how each law would take shape and how the FCC would react. Isn't this too abstract?

Wu said he did not disagree, but that the question of whether the FCC preempt at all is ripe and the court should invalidate that language.

Stephen Wu of the State of New York argued that the FCC did not have the authority to preempt state attempts to restore net neutrality rules against blocking and throttling, but he got plenty of pushback on that argument.

Wu said the FCC's decision not to regulate does not give it the authority to preempt others' attempt to do so. He said states have inherent authority to regulate in the interests of public safety, for one. 

Judge Williams asked whether Wu was saying the FCC would preempt state consumer protections for things the FCC says are of concern. Wu said it was unclear, but that the FCC was preempting state disclosure laws, which are traditional state consumer protections. 

Judge Wilkins asked whether Wu was saying he wanted the court to write a decision saying the FCC has no authority, "none," to preempt state law in this area. Wu said no, they were saying that when the FCC asserts that it lacks statutory authority over practices, it can't preempt states from exercising their authority over those practices.

When federal power is withdrawn, states must be allowed to step in, said Wu. But even when the FCC is saying that the feds have jurisdiction over interstate communications, asked Wilkins. Wu said the FCC has expanded the meaning of interstate into states' wheelhouse, like disclosure requirements, that "touch upon" providers of interstate communications.

He said it was about states regulating in its core area of concerns, which is what the FCC is trying to preempt, but can't.

The FCC weighs in

Countering Michalopoulos et al. was FCC General Counsel Tom Johnson for the defense, who had plenty of time to go over his notes given the two-plus hours of what was scheduled for a 75 minute petitioner argument. 

Johnson told the court that Brand X and that court's earlier ruling in USTelecom v. FCC had established that the FCC had the authority to do exactly what it did, which was to classify internet access as an information provider. He said the other side was just trying to re-litigate those judgments.

He got further in his argument than Michalopoulos before being stopped by Judge Millett to ask what function on a computer would provide an information service that is distinct from the telecom function, but then the questions came thick and fast, mostly from Millett.

Johnson said under the 1996 Telecom Act handling of emerging computing services, the FCC could look at whether there were two services being offered that might deserve different regulatory treatment. 

Judge Williams asked whether the FCC is relying on more than DNS and caching functionally integrated information processing capabilities to establish that internet access is an information service. Johnson said those were indeed determinative. Judge Millett, who dominated the questioning of Johnson, asked what further processing there was. Johnson said DNS and caching were all that Brand X required to qualify internet access as an information service and all that it was relying on.

Johnson said those services fully satisfy the info service definition, including storage and retrieval as well as processing. He said that the FCC's core area of expertise is network functionality and that DNS and cacheing do not fall under the management exception for a telecommunications service because they do not simply manage transmissions but provide enhanced functionality.

Judge Millett asked why definition of capability does not extend to telephone. He said that cable modem necessarily offers info processing with connection to transmission, while phone service provides transparent transmission (point-to-point) on a standalone basis, so it is Title II.

She asked him to explain how using a phone is different from accessing the 'net and why they both don't have the ability to acquire information. He said the FCC just does not think a phone offers the same, dynamic, experience. But Millett pressed for a clearer difference between their capabilities.

Millett said she was focused on definition of capability and why that does not sweep telephone into information service. 

Johnson said the FCC was looking at the uses by consumers. But Millett said she still did not understand why phones would not also be an information service, and was it the amount of information one can get over the net rather than over the phone.

Johnson went back to issue of functionality. Millett never appeared to get the answer she was looking for. He said there was difference both in kind and degree.

Johnson said that where there was ambiguity, looking at different service characteristics was a legitimate way for the FCC to make a call.

Turning to the policy call, Johnson said the FCC determined that the threat to net freedom was not ISP blocking, for which there was scant evidence but that many Americans don't have access, which the Title II rules were depressing.

Millett asked if the evidence of a slowdown in investment was causation or correlation. Johnson said causation. He said the FCC looked at historical data about the threat of Title II, including on smaller ISPs trying to help close the digital divide.

She pointed to the ISP execs who told investors Title II was not going to affect investment. Johnson said that the FCC had deemed some of those comments to be ambiguous. Johnson said CEO projections in such financial calls were not probative. Millett pointed out that there were legal consequences if what they were telling Wall Street wasn't true.

Wilkins pointed out that the FCC had the right to change from prior policy, but that there was an enhanced explanation required. He said the FCC's deregulatory approach does not need to be better than the previous, just that we believe it to be better. 

Millett asked whether the FCC viewed the lack of evidence of blocking and throttling before 2015 to mean that ISPs felt, or were, at liberty to do so, but didn't? 

He said he didn't know what prior commissions were thinking but that if there were overwhelming incentives to block and throttle you would have seen more evidence, and that it was reasonable for the FCC to make predictive judgments based on that.

Johnson said absence such evidence, the FCC concluded the transparency route as the better way to go than ex ante rules.

Johnson got some tough questioning on what conduct was now no longer against FCC rules, including, say, Hulu paying an ISP to throttle Netflix. Johnson conceded it would be allowable so long as it were disclosed, but ISPs had pledged not to engage in anticompetitive throttling and the Federal Trade Commission could enforce those pledges.

Johnson said the petitioners lack standing to challenge the transparency rule since it did not harm them, and ample authority to impose it, so it was an academic debate. 

Millett asked for an explanation of the impact of paid prioritization.

Johnson said the FCC 1) rejected the argument that prioritizing certain packets would affect best-effort services and 2) concluded that quality of service arrangements will benefit public safety by giving them ability to have dedicated networks, though it did not specifically address that public safety benefit in the order.

Millett latched onto the fact that the order did not talk about the fact that there were really no post hoc (after the fact) remedies for issues with slowing public safety. Johnson said it was up to the other side to show concrete harms.

She was not assuaged. She said if local government can't afford paid prioritization can't afford enterprise services, i.e. their own prioritization, how does prioritization benefit them. Johnson suggested localities do use enterprise services.

Millett was focused on paid prioritization and what it actually meant. Was it a fast lane? Johnson suggested it was only a "few milliseconds faster" lane that would not adversely affect other non-prioritized services.

She asked if Johnson was saying there would be no harm to public safety, or that it was OK if there was. He said what the FCC was saying was that they had picked the best approach, but could not anticipate all harms.

Johnson responded to the challenge to the state preemptions. 

He said the states had not identified something other than the jurisdictionally interstate service that the FCC was regulating, and only the FCC gets to have its hand on that interstate service. He said the FCC was not abandoning the field, but that for a state to reimpose the same rules or more onerous ones would undermine the FCC's decision not to impose onerous Title II regs.

Judge Wilkins wondered why the FCC had not provided some provision that there could be no prioritizing over public safety, then asked why a state could not do that. Johnson said he was not sure that such a targeted public safety reg would necessarily be out of bounds. But Wilkins said the preemption language was broad and would seem to cover that. 

Clearly, the judges had issues with the FCC's relative silence on public safety implications of paid prioritization.

Jonathan Nuechterlein of Sidley Austin wrapped up the arguments for the ISP intervenors, who are just fine with the deregulatory order.

He said that the FCC clearly has discretion under Brand X to make the information service call it has made and deserves the court's deference to its reasonable discretion. He said there is no question that what any ISP does is offer a capability of processing, retrieving, storing and otherwise dealing with information "via telecommunications."

Nuechterlein said paid prioritization does not exist on the pubic internet to his knowledge. He called it a theoretical construct that ISPs would get together to agree on packet delivery. He said talk of fast and slow lanes and dirt roads are entirely speculative.

Michalopoulos countered in his brief rebuttal that there is plenty of paid prioritization.

Nuechterlein said in reference to the suggestion Hulu could pay to throttle Netflix that that would run into antitrust issues, in any event would never happen as a business matter. 

“The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service, and after today’s argument we continue to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today," said Matthew Berry, chief of staff to FCC Chairman Ajit Pai.

“Today we fought for an open and free internet that puts consumers first," said Mozilla COO Denelle Dixon. "Mozilla took on this challenge because we believe the FCC needs to follow the rules like everyone else. We argued before the Court that the FCC simply cannot renounce its responsibility to protect consumers on a whim. It’s not permitted by law, and it’s not permitted by sound reasoning. The fight to save net neutrality is on the right side of history. Consumers deserve an open internet. And we look forward to the decision from the Court.”

In the run-up to the arguments, both sides had been getting their thrusts or parries in early.

Evan Greer, executive director for digital rights group Fight for the Future, minced no words: “Comcast, Verizon, and AT&T are going to wish they never picked this fight with the Internet. More than a year after the repeal of net neutrality people are still outraged and paying close attention," she said. "Ajit Pai’s FCC blatantly ignored public opinion and acted with reckless disregard for the law in order to give a massive government handout to some of the most power-hungry corporations in the U.S."

She suggested a court decision in favor of deregulation would not deter them. "Telecom lobbyists were hoping that we would have given up by now. They thought they could outspend and outlast us. They were wrong. Internet activists are continuing to fight in the courts, in Congress, and in the states. Net neutrality is coming back with a vengeance. It’s only a matter of time.”

Matthew Berry, chief of staff to FCC chair Ajit Pai, had said he was confident the court would see it the FCC's way. "The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service," he said, "and we have every reason to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today.” 

No matter what the court does, the losing side will likely appeal to the full court, and continue to press Congress to resolve the issue once and for all with net neutrality legislation.

In a new twist on the year's long legal journey of net neutrality rules, there is a new judge hearing oral argument in the Feb. 1 challenge by Mozilla et al. to the FCC's recent rollback of rules.

Judge Judith Rogers is out and judge Robert Wilkins is in, according to the oral argument calendar on the court's site. There was no explanation for the switch.

The original panel had been Judges Rogers, Patricia Millett and Stephen Williams, with Rogers presiding. With Rogers out, Millett will be presiding. One attorney familiar with both said that the biggest difference will likely be that while Rogers is pretty much a by the book stickler for holding the parties to their time limits, Millett is looser with those limits.

As to the differences between Rogers and Wilkins, he says not much ideologically. "However, Wilkins has much less of a track record on tech issues," he says. "Like all the D.C. Circuit judges, he is very smart. He is more active in oral argument than Judge Rogers, so the dynamic may be slightly different in that regard."

At issue is the FCC's Restoring Internet Freedom order repealing rules against blocking, throttling and paid prioritization and reclassifying internet access as a Title I information service not subject to any common carrier regs.

Public Knowledge, Mozilla, the Benton Foundation, INCOMPAS and others challenging the FCC's Restoring Internet Freedom order say that was not just bad policy but illegal.

Related: Pai Says Net Neutrality Doom and Gloom Predictions Were Baseless

That is coming in a brief with the U.S. Court of Appeals for the D.C. Circuit, which is hearing their challenge to the network neutrality reg rollback--the deadline for initial briefs from non-government parties is Aug. 20. The brief has yet to be made public, but Public Knowledge outlined the highlights.

That group and the others have long argued the FCC was making bad policy decisions when the Republican majority last fall voted to repeal the rules against blocking, throttling and paid prioritization and the title II common carrier regime that underpinned them.

Related: Court Sets Net Neutrality Briefing Schedule

But they also say that decision, under chair Ajit Pai, "broke the law," which is why the court must reverse it and restore the regulations.

Their argument is that the FCC decided the agency lacked all jurisdiction over the internet, a radical move that defined the statute, they say. Also in the "illegal" category, they argue was what they said was the FCC's "cherrypicking" of investment evidence to justify their predetermined outcome of reversing the Title II classification.

The FCC majority said one reason for the reversal was that Title II had discouraged investment, including in broadband buildouts to rural and unserved areas. Public Knowledge et al. argue that the FCC ignored evidence to the contrary in conducting a cost-benefit analysis that only benefited their "ideological preference."

“If the current policy stands, consumers can expect higher bills and fewer online choices, with fewer expressive and creative outlets, they told the court. "Ultimately, the internet will look more and more like the overpriced cable TV bundles of decades past."

Ajit Pai told legislators last week in an FCC oversight hearing that such predictions were "chicken little" fear mongering that had not materialized. Some Senate Dems suggested that was because ISPs were laying low until the court case was settled before flexing their newfound blocking and throttling and degrading muscles.

ISPs say that is not going to happen, and that if any of it does and is anticompetitive, the Federal Trade Commission and Justice Department can prevent that through investigations and lawsuits.

Mozilla (Firefox) is adding two cities to its Gigabit Community fund.

The fund is awarding $300,000 in grants to leverage gigabit fiber networks in Eugene, Ore., and Lafayette, La., the company said.

The money will go to things like ultra-high definition in the classroom and VR field trips, taking a page or two from existing Mozilla gigabit cities Austin, Tex.;Chattanooga, Tenn., and Kansas City.

The fund is a collaboration with the National Science Foundation and U.S. Ignite.

The two cities were added based on various criteria, including widely deployed high=speed broadband and a "critical mass" of anchor institutions.

“Mozilla is committed to supporting promising projects in gigabit-enabled U.S. cities — projects that use connectivity 250-times normal speeds to make learning more engaging, equitable and impactful," said Chris Lawrence, VP, leadership network, for Mozilla.

Mozilla (Firefox) is putting up $2 million in prize money for two challenges, one of which is to leverage "underused" infrastructure where it says commercial broadband providers aren't supplying affordable or sufficiently high-speed access.

The effort, dubbed the Wireless Innovation for a Networked Society (WINS) Challenges, is in concert with the National Science Foundation

The Smart Community Networks Challenge is described as seeking to use current infrastructure, "like old phone booths" to provide wireless connectivity where "commercial providers don’t supply affordable access" or "a particular community is too isolated," or "the speed and quality of access is too slow."

The other Off-the-Grid Challenge, is to "help communities maintain access to critical services (like social networking, maps and messaging) in the immediate aftermath of a disaster."

It offers as an example of an off-the-grid option "a backpack containing a hard drive is wired to a computer, battery and Wi-Fi router. The router provides access, via a Wi-Fi network, to resources on the hard drive like maps and messaging applications."

A smart community option might be "a neighborhood wireless network where the nodes are housed in, and draw power from, disused phone booths or similarly underutilized infrastructure."

In a blog post announcing the challenges, Mozilla Executive Director Mark Surman positioned the effort as necessary in world of merging media.

"[T]he underlying network itself is increasingly centralized, relying on infrastructure provided by a tiny handful of companies. We don’t have a failsafe if the infrastructure these companies offer is blocked or goes down," he blogged Tuesday (March 7).

Submissions will be accepted starting in June, with design concepts due by October. Winners will be announced soon after and prototypes will be due in May 2018.

Mozilla will also host four "launch" events to promote the challenge: March 25 in Raleigh, N.C.; April 9 in Oakland, Calif.; April 15 in Boulder, Colo.; and April 22 in New York.