Cleland served as Deputy United States Coordinator for Communications and Information Policy in the George H. W. Bush Administration. Eight Congressional subcommittees have sought Cleland’s expert testimony and Institutional Investor twice ranked him the #1 independent analyst in his field. Scott Cleland has been profiled in Fortune, National Journal, Barrons, WSJ’s Smart Money, and Investors Business Daily. Ten publications have featured his op-eds. For a full bio see: www.ScottCleland.com.
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Link to full White Paper — here.
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.
The FCC’s case also has so many serious conceptually inter-dependent flaws that it is like a fragile house-of-cards, built of flimsy definitional, precedential, and factual assumptions. This means opponents only need to knock down one of the FCC’s supporting “cards” for the entire house of cards to collapse. In contrast, the FCC needs every card in its house of cards to withstand scrutiny and remain standing.
Simply the FCC’s case is politically strong, but legally weak.
As an analyst, one does not have to see the order’s final language to predict with confidence that the FCC’s case faces serious legal trouble overall, because the eight big conceptual legal problems spotlighted here are not dependent on the details of the FCC’s order. After two FCC-failed court reviews in 2010 in Comcast v. FCC and 2014 in Verizon v. FCC, and decades of multiple Title II definitional and factual precedents completely contrary to the FCC’s current legal theory, the legal field-of-play is much more clear than usual or most appreciate.
Those who take the time to inform themselves of the FCC’s obvious and daunting legal problems will come away very-skeptical of the FCC’s chances of success after all appeals are exhausted.
I will revisit this Part I analysis to confirm the outcome’s likely probability, once the FCC’s legal case is known in better detail when the order is made public. However, absent a legal secret “FCC magic wand” yet unknown in this well-trod, high-scrutiny, eighty-year, Title II legal space, the general outcome probability 80% for the FCC to ultimately lose in court — is unlikely to change much.
Summary of the FCC’s Title II Legal House of Cards:
- FCC’s decision is not an administrative interpretation of law but a political bypass of Congress.
- FCC is not Congress and has no legislative authority to “modernize” communications law.
- FCC’s legal theory is a Rube Goldberg contrivance to manufacture legal authority.
- FCC’s legal theory recognizes no statutory bounds on FCC authority or jurisdiction.
- FCC reclassification assumes it can overrule legally-settled definitions and findings of fact.
- FCC asserts authority for an illegal goal; compel zero-price for service with no compensation.
- FCC is arbitrary & capricious ignoring large reliance interests & need for proportionality.
- FCC’s legal forbearance theory is inherently contradictory and thus arbitrary.
Click here to read the whole 12-page analysis and White Paper.
FCC Open Internet Order Series
Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]
Part 2: Why FCC proposed net neutrality regs unconstitutional, NPR Online Op-ed [9-24-09]
Part 3: Takeaways from FCC’s Proposed Open Internet Regs [10-22-09]
Part 4: How FCC Regulation Would Change the Internet [10-30-09]
Part 5: Is FCC Declaring ‘Open Season’ on Internet Freedom? [11-17-09]
Part 6: Critical Gaps in FCC’s Proposed Open Internet Regulations [11-30-09]
Part 7: Takeaways from the FCC’s Open Internet Further Inquiry [9-2-10]
Part 8: An FCC “Data-Driven” Double Standard? [10-27-10]
Part 9: Election Takeaways for the FCC [11-3-10]
Part 10: Irony of Little Openness in FCC Open Internet Reg-making [11-19-10]
Part 11: FCC Regulating Internet to Prevent Companies from Regulating Internet [11-22-10]
Part 12: Where is the FCC’s Legitimacy? [11-22-10]
Part 13: Will FCC Preserve or Change the Internet? [12-17-10]
Part 14: FCC Internet Price Regulation & Micro-management? [12-20-10]
Part 15: FCC Open Internet Decision Take-aways [12-21-10]
Part 16: FCC Defines Broadband Service as “BIAS”-ed [12-22-10]
Part 17: Why FCC’s Net Regs Need Administration/Congressional Regulatory Review [1-3-11]
Part 18: Welcome to the FCC-Centric Internet [1-25-11]
Part 19: FCC’s Net Regs in Conflict with President’s Pledges [1-26-11]
Part 20: Will FCC Respect President’s Call for “Least Burdensome” Regulation? [2-3-11]
Part 21: FCC’s In Search of Relevance in 706 Report [5-23-11]
Part 22: The FCC’s public wireless network blocks lawful Internet traffic [6-13-11]
Part 23: Why FCC Net Neutrality Regs Are So Vulnerable [9-8-11]
Part 24: Why Verizon Wins Appeal of FCC’s Net Regs [9-30-11]
Part 25: Supreme Court likely to leash FCC to the law [10-10-12]
Part 26: What Court Data Roaming Decision Means for FCC Open Internet Order [12-4-12]
Part 27: Oops! Crawford’s Model Broadband Nation, Korea, Opposes Net Neutrality [2-26-13]
Part 28: Little Impact on FCC Open Internet Order from SCOTUS Chevron Decision [5-21-13]
Part 29: More Legal Trouble for FCC’s Open Internet Order & Net Neutrality [6-2-13]
Part 30: U.S. Competition Beats EU Regulation in Broadband Race [6-21-13]
Part 31: Defending Google Fiber’s Reasonable Network Management [7-30-13]
Part 32: Capricious Net Neutrality Charges [8-7-13]
Part 33: Why FCC won’t pass Appeals Court’s oral exam [9-2-13]
Part 34: 5 BIG Implications from Court Signals on Net Neutrality – A Special Report [9-13-13]
Part 35: Dial-up Rules for the Broadband Age? Op-ed Rebutting Marvin Ammori’s [11-6-13]
Part 36: Nattering Net Neutrality Nonsense Over AT&T’s Sponsored Data Offering [1-6-14]
Part 37: Is Net Neutrality Trying to Mutate into an Economic Entitlement? [1-12-14]
Part 38: Why Professor Crawford Has Title II Reclassification All Wrong [1-16-14]
Part 39: Title II Reclassification Would Violate President’s Executive Order [1-22-14]
Part 40: The Narrowing Net Neutrality Dispute [2-24-14]
Part 41: FCC’s Open Internet Order Do-over – Key Going Forward Takeaways [3-5-14]
Part 42: Net Neutrality is about Consumer Benefit not Corporate Welfare for Netflix [3-21-14]
Part 43: The Multi-speed Internet is Getting More Faster Speeds [4-28-14]
Part 44: Reality Check on the Electoral Politics of Net Neutrality [5-2-14]
Part 45: The “Aristechracy” Demands Consumers Subsidize Their Net Neutrality Free Lunch [5-8-14]
Part 46: Read AT&T’s Filing that Totally Debunks Title II Reclassification [5-9-14]
Part 47: Statement on FCC Open Internet NPRM [5-15-14]
Part 48: Net Neutrality Rhetoric: “Believe it or not!” [5-16-14]
Part 49: Top Ten Reasons Broadband Internet is not a Public Utility [5-20-14]
Part 50: Top Ten Reasons to Oppose Broadband Utility Regulation [5-28-14]
Part 51: Google’s Title II Broadband Utility Regulation Risks [6-3-14]
Part 52: Exposing Netflix’ Biggest Net Neutrality Deceptions [6-5-14
Part 53: Silicon Valley Naïve on Broadband Regulation (3 min video) [6-15-14]
Part 54: FCC’s Netflix Internet Peering Inquiry – Top Ten Questions [6-17-14]
Part 55: Interconnection is Different for Internet than Railroads or Electricity [6-26-14]
Part 56: Top Ten Failures of FCC Title II Utility Regulation [7-7-14]
Part 57: NetCompetition Statement & Comments on FCC Open Internet Order Remand [7-11-14]
Part 58: MD Rules Uber is a Common Carrier – Will FCC Agree? [8-6-14]
Part 59: Internet Peering Doesn’t Need Fixing – NetComp CommActUpdate Submission [8-11-14]
Part 60: Why is Silicon Valley Rebranding/Redefining Net Neutrality? [9-2-14]
Part 61: the FCC’s Redefinition of Broadband Competition [9-4-14]
Part 62: NetCompetition Comments to FCC Opposing Title II Utility Regulation of Broadband [9-9-14]
Part 63: De-competition De-competition De-competition [9-14-14]
Part 64: The Forgotten Consumer in the Fast Lane Net Neutrality Debate [9-18-14]
Part 65: FTC Implicitly Urges FCC to Not Reclassify Broadband as a Utility [9-23-14]
Part 66: Evaluating the Title II Rainbow of Proposals for the FCC to Go Nuclear [9-29-14]
Part 67: Why Waxman’s FCC Internet Utility Regulation Plan Would Be Unlawful [10-5-14]
Part 68: Silicon Valley’s Biggest Internet Mistake [10-15-14]
Part 69: Will the FCC Break the Internet? [10-22-14]
Part 70: Net Neutrality Has Become an Industrial Policy [10-31-14]
Part 71: The Federal Communications Congress? [11-7-14]
Part 72: The Top Ten Adjectives to Describe Net Neutrality [11-11-14]
Part 73: Top Ten Questions to Ask About Title II Regulation of the Internet [11-20-14]
Part 74: The Only Legitimate FCC Hybrid Net Neutrality Approach [12-1-14]
Part 75: Who Pays for Net Neutrality? [12-3-14]
Part 76: Top Ten Deficiencies in FCC’s Title II Record [12-8-14]
Part 77: FCC Title II Internet Regulation: “Believe it or not!” [12-17-14]
Part 78: The FCC Is Unnecessarily Undermining its Legitimacy [12-18-14]
Part 79: NetCompetition Statement on New FCC Net Neutrality Legislation [1-16-15]
Part 80: Need for Modernizing Communications Law – Seeing the Forest for the Trees [1-18-15]
Part 81: Why the FCC Needs Congress [1-20-15]
Part 82: NetCompetition on FCC Publicly Sharing its Proposed Open Internet Order [1-23-15]
Part 83: The FCC’s De-Americanization of the Internet [1-25-15]
Part 84: Testing the FCC’s Net Neutrality Calculus [1-28-15]
Part 85: Net Neutrality Bait & Switch to Title II [2-3-15]
Part 86: FCC Internet Utility Regulation Is a Really Stupid Idea [2-9-15]
Part 87: The FCC Is Not Neutral [2-17-15]
Part 88: Title II Protectionism Will Hurt Google & Silicon Valley in EU [2-19-15]
Part 89: The FCC’s Predictable Fiasco of Internet Utility Regulation [2-24-15]
[Originally published at PrecursorBlog]