TechFreedom to Appeals Court: Flexible Rules Needed to Limit FCC’s Power Over Internet

Alex Grubbs | August 4, 2016 | 2:58pm EDT
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( – The president of TechFreedom, a non-profit technology policy think tank, on Tuesday called upon the full D.C. Circuit Court of Appeals to change a June decision by a three-judge panel that allows the Federal Communications Commission (FCC) to regulate broadband service by reclassifying it as telecommunications.

TechFreedom petitioned for the case to be reviewed by the full appellate court before the July 29 deadline.

“What you do is, you write a rule that is flexible enough to allow the agency to go after harmful practices but still allow the good things to happen. That didn’t happen here, specifically on paid prioritization,” said Berin Szóka, president of TechFreedom, regarding a possible solution to the FCC's "power grab".

“The agency, because it ignored economics, wrote a bright-line rule that, quite frankly, was not driven by substance. It was driven by politics,” Szóka said as part of a panel discussion about the future of net neutrality that was moderated by CNET’s Maggie Reardon and sponsored at George Washington University by TechFreedom, the George Washington Institute of Public Policy (GWIPP) and the Open Technology Institute (OTI).

The net neutrality ruling reclassifies broadband providers as public utilities and ensures that they treat all internet content and traffic the same, regardless of the source. It also prevents them from blocking content or channeling it into “fast” and “slow” lanes.

In June on a 2-1 vote, the three-judge panel upheld the FCC’s 2015 Open Internet Order (OIO), which gave the agency “broad authority to regulate broadband service by reclassifying it under Title II” of the Communications Act of 1934.

Amended by the Telecom Act of 1996, Title II allows common carriers to establish routes without limitation and to interconnect directly or indirectly with other telecommunication carriers’ facilities or equipment, with special provisions for Bell companies.

“The FCC’s strategy of reclassifying all broadband Internet access services as telecommunications services required it to significantly reinterpret the Communications Act,” TechFreedom’s petition argued.

"The FCC is subjecting all broadband Internet access service to common 3 carrier regulation—a step unprecedented in the history of the Internet," the petition noted, adding that it also conflicts with Supreme Court precedent.

However, another panelist, Sarah Morris, senior counsel and director of open internet policy at the OTI, said the three-judge panel’s decision should be upheld.

“I think the time now is to move forward and to accept the rules as the law of the land,” Morris said.

She also argued that the ruling giving the FCC power over broadband services has not led to any major problems so far.

“We have just not seen the disastrous consequences of this decision. In fact, we’ve seen, I’m hoping we will see a chilling effect on any harmful behavior that we have seen leading up to the open internet order,” Morris said.

But Szóka reiterated that the real problem is not necessarily net neutrality itself, but the additional power the FCC was granted by this ruling.

“This case is really about the FCC’s claim of sweeping power to regulate the internet as the basis for those so-called net neutrality rules,” Szóka said.

“The [FCC] chairman would have you believe this is just about the ‘big dogs’  – meaning big cable and telephone companies trying to stop the FCC from protecting consumers. In fact, this is about lots of people...that are concerned that the FCC’s overreach here can really have chilling implications for the entire internet, and we don’t know what the next chairman might do if the power is claimed by this FCC.”

He added that the FCC could gain even more power under Title II because of this case when new leadership takes over the agency in the next administration.

Gus Hurwitz, an assistant law professor at the University of Nebraska, pointed out that the case could make it to the U.S. Supreme Court.

“I think that the courts have to hold agencies to a higher standard than they’ve done so here when agencies are changing decisions,” Hurwitz said.

“And I believe that’s what the Supreme Court wants, and I believe it’s an important reason this is likely to get to the Supreme Court because the approach the D.C. Circuit is taking allows agencies to easily change their policy preferences.”

Related: Obama’s FCC’s Internet Takeover Would Reduce Internet to a Public Utility

Related: Court Upholds Net Neutrality Rules on Equal Internet Access

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