Amicus Brief

Amicus Brief of ICLE and Participating Scholars, Mozilla v. FCC


ICLE filed a  brief in support of Petitioners in the D.C. Circuit case, Mozilla v. FCC, a case that challenged the FCC’s authority to issue the Restoring Internet Freedom Order (“RIFO”). In RIFO, the FCC repealed the Title II classification on ISPs, preempted conflicting state laws, and applied a transparency rule against ISPs, among other provisions. In our brief, we argue that:

Contrary to the claims of Petitioners, the Commission acted well within its authority in adopting the Order. The Commission developed a comprehensive regulatory scheme for ISPs that includes both obligations imposed under the Communications Act, as well as complementary regulation and potential enforcement under antitrust law by the Commission’s sister agencies. As we show below, this competition-oriented, light touch regulatory regime comports with the relevant provisions and stated goals of the Communications Act far better than the ex ante rules adopted in the Title II Order.

In adopting this competition-oriented regulatory regime, the Commission also acted within its authority to preempt contradictory state laws under well- established precedent. The Commission did so while properly allowing for states to continue to regulate under other laws of general applicability that do not conflict with or frustrate the federal policies underlying the Order.

Accordingly, the Order should be upheld and the petitions for review should be denied.

Signatories on the Brief

  • Michelle Connolly
    Professor of Economics
    Duke University
    Former chief economist, FCC
  • Janice A. Hauge
    Professor, Department of Economics
    University of North Texas
  • Justin (Gus) Hurwitz
    Director of Law & Economics Programs
    International Center for Law & Economics
    Associate Professor of Law And Co-Director of Space,
    Cyber, and Telecom Law Program
    Nebraska College of Law
  • Mark A. Jamison
    Director and Gunter Professor, Public Utility Research Center
    University of Florida
  • Stan Liebowitz
    Ashbel Smith Professor of Managerial Economics
    University of Texas at Dallas
  • Daniel A. Lyons
    Associate Professor of Law
    Boston College Law School
  • Geoffrey A. Manne
    President and Founder
    International Center for Law & Economics
  • Michael Sykuta
    Associate Professor, Applied Social Sciences
    University of Missouri – Columbia