The FCC’s just operative Open Internet Order, with its classification of broadband as Title II common carriage and vague Internet conduct standard, sets ISPs up for FCC “gotcha” or contrived regulation and enforcement.
The appellate process will only get tougher for the FCC’s Title II Open Internet Order from here, which means both legal and electoral uncertainty over the permanence of the FCC’s net neutrality authority will only grow as the appellate process plays out and the 2016 Presidential election approaches.
The Federal Communications Commission’s (FCC) recent decision to claim full regulatory power over the way the Internet works was bad enough, but the next battle in the government’s war on consumer-friendly innovation is approaching fast.
The FCC’s latest legal brief opposing a stay of its Open Internet Order, hurt its legal case more than it helped. The FCC brief unwittingly: exposed a glaring internal inconsistency with the FCC’s Open Internet Order; spotlighted its arbitrary and capricious decision-making; and exposed a big mistake in its legal strategy.
In today’s edition of The Heartland Daily Podcast, Director of Communications Jim Lakely speaks with Seton Motley, President of Less Government. Motley and Lakely talk about the pending lawsuit between Disney and Verizon.
Based on the latest best arguments this week from both the FCC and broadband petitioners, the D.C. Circuit Court of Appeals is very likely to partially stay the FCC Open Internet Order’s reclassification of broadband as a Title II service and imposition of a new Internet conduct standard — in the coming weeks.
In the coming weeks, expect the D.C. Court of Appeals or the Supreme Court to grant a partialstay, of only the FCC’s Title II reclassification of broadband and its new “Internet conduct standard” (not the FCC’s net neutrality prohibitions of blocking, throttling or paid prioritization), even though stay requests normally have a low probability of success, because petitioners must convince the court that they are likely to win on the merits and that the opposed action will cause irreparable harm.
The FCC’s Open Internet Order, which reclassified the commercial Internet as a Title II utility, is very likely (80%) in the end, to be overturned in court – for a third time.
The FCC’s legal theory and many core assumptions are so aggressive, it’s clear that the FCC expects, and needs, continual and maximal deference from the court to prevail. The FCC also requires the courts to view the FCC’s most aggressive assertion of unbounded authority ever, as a mere administrative interpretation of ambiguous law, and not a political bypass of Congress and the 1996 Telecom Act.
Will this FCC legal team learn from the legal mistakes of their predecessors and ensure the FCC has a thorough and a sufficient legal record to justify their legal theories, given that the FCC already has failed twice in crafting legal net neutrality regulations in Comcast v. FCC in 2010 and again in Verizon v. FCC in 2014?
As we’ve often discussed, the Tech World Media is just as hopelessly Leftist and lost as the broader Jurassic Press. They so often get it so very wrong – often because their absurd political perspective warps their alleged “reporting.”
Rep. Henry Waxman, Ranking Member of the House Energy and Commerce Committee,wrote the FCC to propose that the FCC, in its pending Open Internet order remand, “reclassif[y] broadband providers as telecommunications services and then using the modern [Title I] authority of section 706 to set bright-line rules to prevent blocking, throttling, and paid prioritization.”
The FCC’s invitation has prompted a “rainbow of policy and legal proposals” that would explore “new ideas for protecting and promoting the open Internet” by imposing Title II telecommunications regulation on America’s Internet infrastructure.
There are two core reasons the FCC should not try to preempt State muni-broadband laws.
1. The Supreme Court has already indicated it would be unconstitutional.
2. It would be anti-competitive, the opposite of the FCC’s statutory purpose and legal mandate.
The Internet peering marketplace works exceptionally well and it has for its entire twenty year history. The unparalleled success, growth, and resiliency of the unregulated model for the Internet backbone peering marketplace has been nothing short of phenomenal in enabling and ensuring everyone reasonable access to the Internet.
The Daily Record reports that the Maryland Public Service Commission ruled that Uber is a common carrier subject to its regulatory jurisdiction. The PSC stated: “[W]hen viewed in their totality, the undisputed facts and circumstances in this case make it clear that Uber is engaged in the public transportation of persons for hire. Thus, Uber is a common carrier and a public service company over whom the Commission has jurisdiction…”
The FCC has asserted a foundational regulatory premise that warrants rebuttal and disproving, given that the FCC is considering if Internet access, and Internet backbone peering, should be regulated like a utility under Title II telephone common carrier regulation.