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.
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.
With this track record of uber-failure – which has put us on the fast track to oblivion – why would we want even more government? When everything Big Government advocates say they need – results in less of what they say they want?
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.
Likely the least regulated private economic sector going into the Age of the Barack Obama Administration – at least at the federal level – was the Internet. Which is largely why the Web has become an ever-evolving, free speech-free market Xanadu.
The US-EU “competition” of protectionist digital industrial policies — U.S. Title II net neutrality vs. the EU’s emerging “platform neutrality” plans — creates an ironic backdrop to negotiations for the US-EU Transatlantic Trade and Investment Partnership (TTIP) “free” trade agreement. Heightening the irony, the Obama Administration, not the European Commission, has been the protectionist digital industrial policy leader, trailblazing the political path for the EU’s Single Digital Market to follow.
Think of the FCC, unilaterally self-armed with the “strongest possible rules” of Title II 1934 monopoly telephone regulation, as a Washington backwater “kangaroo court,” where innocent communicators can be hauled before a mock court system where normal due process, rule of law, and justice may not apply.
The collateral damage is beginning to pile up from the FCC’s February decision to trigger Title II telephone utility regulation of the Internet. Long called the “nuclear” option, the FCC preemptively triggered Title II Internet regulation ostensibly to prevent potential new net neutrality problems, which the FCC admits it can’t yet identify.
The huge-er government gets – the greater its ability to deliver cronyism goodies. The bigger the wallet government has – the larger the regulatory hammer it wields – the more Crony Socialism it can dispense.
Expect the FCC’s new Open Internet Order’s assertion of Title II authority ultimately to be rejected in court (90%), because of its core illegal confiscatory purpose and its serial ends-justify-the-means trampling of due process.
The FCC’s Title II legal defense is a “modern” day version of “the Emperor has no clothes” fable, where the vain FCC confidently parades in public clothed in the legal fabric that utopian legal alchemists have convinced the FCC is invisible only to those who are “hopelessly stupid” or “unfit for their positions.” Sadly, this emperor (the FCC) has no clothes (sustainable legal case).
On February 26th, the FCC executed President Obama’s call to “implement the strongest possible rules” to regulate the Internet as a telephone utility under “Title II” of the Telecommunications Act.
Legally, the result of this “reclassification” was for President Obama and the FCC to assert regulatory jurisdiction over the Internet ecosystem, creating a de facto American “Digital [Internet] Single Market” industrial policy, like the European Commission is in the process of creating for the European Union.
In this episode of The Heartland Daily Podcast, Budget & Tax News managing editor Jesse Hathaway is joined by former Deputy United States Coordinator for Communications and Information Policy Scott Cleland.
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 Barack Obama Administration’s Thursday Internet uber-power grab is awful for just about every American. It will lead to dramatically more expensive Web access – because of both raised service costs and huge new taxes.
Thursday is for freedom a very bad day. That is the day the free speech-free market Xanadu that is the Internet will be unilaterally seized by the Barack Obama Administration.
Per the President’s demand, the allegedly independent Federal Communications Commission (FCC) is pretending to be Congress – and writing new Web-regulating law for themselves. And on Thursday they will vote on it – and thereby grab expansive, broad and deep overlording powers.
Last November, President Obama effectively abandoned America’s longstanding free trade Internet policy established by President Clinton, in favor of a protectionist Internet industrial policy to benefit America’s national champions, Silicon Valley, under the guise of “net neutrality” policy.