If you’re at all interested in communications law and
policy, and you don’t know that the oral argument in the Open Internet case will be held this Friday, December 4, then…well,
I won’t even say it.
In any event, I bet 95% of you reading this now, do know.
And you almost certainly know that I oppose the FCC’s
action in February of this year adopting new mandates governing the
practices of Internet service providers. I especially object to that part of
the Commission’s order classifying Internet providers as common carriers under
Title II of the Communications Act. This allows them to be regulated in much
the same way as railroads in the 19th Century or Ma Bell in the 20th
Century. Most, but not all, of the FSF-affiliated scholars share my opposition
to various aspects of the FCC’s Open Internet order on either policy
or legal grounds, or both.
Over the last decade – yes, that’s how long the “net
neutrality” since rebranded “Open Internet” fight has been going on – Free
State Foundation scholars have published literally
hundreds of book chapters, law review articles, academic papers and shorter
pieces and blogs on the subject. Trust
me, literally means literally.
If you want to prep for the December 4 oral argument, you
can find these pieces on our website under the Publications tab or
on our blog site.
Here – especially for the benefit of busy reporters and our
other friends in the press – I only want to highlight and link to a very few of
our Free State Foundation papers published this year that address the FCC’s Open Internet order. Beneath the link to
the entire work, there is an excerpt from each. Each of these pieces provides
insights into various aspects of the FCC’s decision that may well be discussed this
Friday.
- Challenging the FCC’s Unlawful Open Internet Order, Justin (Gus) Hurwitz, August 13, 2015. (This Perspectives from FSF Scholars reviews an amicus curiae brief submitted by the International Center for Law and Economics and economics and administrative law scholars, including myself.)
“The brief’s basic argument is that the
Order would expand the FCC’s authority far beyond what the Communications Act
permits. This follows both because the FCC is asserting a massive expansion of
its regulatory authority to encompass basically the entirety of the Internet,
and because of the lengths to which the Commission must go in crafting its
Order, picking and choosing among statutory provisions on the one hand and
disclaiming various effects of the Order on the other. All in all, the brief
demonstrates that the Commission has created a “Frankenorder” that bears no
resemblance to Congressional intent.”
- Why Chevron Deference May Not Save the FCC’s Open Internet Order – Part II, Randolph J. May, May 4, 2015.
“As I discussed in Part I, a good case
can be made that the Commission did not support adequately its reversal of
policy regarding classification of Internet services, ‘when, for example, its
new policy rests upon factual findings that contradict those which underlay its
prior policy.’ And, as shown in Part II, it is arguable that President Obama’s
explicit ‘asks,’ coupled with the agency’s abandonment of its primary proposal
in the rulemaking notice, may cause courts to be less deferential than they
otherwise would be if they consider political considerations to have trumped
the Commission’s exercise of its supposed expertise. Either of these two lines
of argument, separately, could mean the Commission’s order is not accorded Chevron deference or any
deference, however denominated. Taken together, the chances that the FCC’s Open
Internet order may not pass judicial muster are further increased.”
- Regulating Interconnection (Lightly!), Daniel A. Lyons, May 19, 2015.
“Of the many potential land mines
lurking in the Open Internet order, perhaps the most surprising is the
Commission’s assertion of jurisdiction over interconnection agreements….[T]he
2014 Notice of Proposed Rulemaking tentatively concluded that the Open Internet
rules should not affect agreements for the exchange of traffic between
networks. Although the Commission invited comments on this conclusion, Chairman
Tom Wheeler explained during the comment period that interconnection is ‘not a
net neutrality issue’ and a Commission spokesman clarified that ‘[p]eering and
interconnection are not under consideration in the Open Internet
proceeding.’…In part because of this about-face, the interconnection provisions
may be one of the portions of the Open Internet order most vulnerable to
reversal on judicial review.”
- The FCC, Still Lawless, Randolph J. May, November 23, 2015.
“The Commission delegated authority in
the ‘Open Internet Order’ to its Enforcement Bureau staff to enforce the new
general conduct rule. This open-ended provision leaves agency bureaucrats with
virtually unbridled discretion to penalize regulated parties for conduct the
parties have no way of knowing in advance is prohibited. It doesn’t take an
expert steeped in the Magna Carta’s history or our American rule of law norms
to understand the problematic nature of this essentially standardless rule,
which by its very nature invites arbitrariness and favoritism in its exercise.”
- Net Neutrality, Administrative Procedure, and Presidential Overreach, Enrique Armijo, November 19, 2015.
“Correspondingly, in reviewing agency
action under the APA, a court is obliged to ensure that the agency record
before it is adequate for judicial review. If that record is inadequate – if
some material basis for the agency’s decision is not in the record – the court
must remand the agency’s rule. All of which begs a few questions: Are net
neutrality-favoring arguments made in secret White House meetings relied upon
by the Obama Administration, and relied upon in turn by an agency that adopts
the Administration’s position in full, adequately public? How might the D.C.
Circuit, which will be hearing oral arguments on the net neutrality rule on
December 4, adequately consider the quality of the agency’s reasoning in such a
case?
The FCC and its advocates would likely
laugh off an argument that a reviewing court might deem this agency record
inadequate, pointing to literally millions of comments from the public, and the
largest docket in the FCC’s history. But the one comment that was indisputably
the most important to the agency in promulgating its final net neutrality rule
was the product of a clandestine process that was in many ways the opposite of
the transparent one that the APA requires. Under the APA, just one needle supporting
the agency’s final rule can sometimes be enough, regardless of the size of the
haystack. But here, this particular needle is not in the haystack at all.”
[NOTE - Professor Armijo said this in
his FSF Perspectives: “Regardless of
which side of the merits of the net neutrality debate you happen to fall on –
and, in the interest of disclosure, if pressed, I personally would likely
conclude that some form of net neutrality rules are a net benefit for Internet
users, a view in contrast to that expressed by most Free State Foundation
scholars – you should find this level of politicization of an independent
agency rulemaking deeply troubling.”]
* * *
The judicial appeal from the FCC’s Open Internet order certainly is one of
the more important communications law and policy cases in the last half-century.
The appeal involves fundamental questions regarding the extent of the FCC’s
authority under the Communications Act to regulate in a public utility-like
fashion important parts of the Internet ecosystem – the Internet service
providers – and possibly the entire ecosystem, including the so-called “edge
providers” like Google, Yahoo, and Facebook. And depending on the outcome of
the judicial review, and the actions of a majority of present or future
Commissioners, such regulation possibly could extend considerably beyond the
messaging services of these Internet companies.
There are also important issues relating
to compliance with Administrative Procedure Act requirements and the strictures
of the First Amendment’s free speech guarantee.
In my view, the Open Internet order’s lawfulness ultimately may be determined by
the Supreme Court. But, in the meantime, fasten your seatbelts: For come the
morning of December 4, the U.S. Marshall will call out: “Oyez! Oyez! Oyez! All persons having business before this
Honorable Court are admonished to draw near and give their attention, for the
Court is now sitting. God save the United States and this Honorable
Court."