The question of whether the FCC has authority to impose
public utility regulation on broadband Internet access services under Title II
ultimately comes down to definitions of terms in the Communications Act. Based
on a plain reading of the Communications Act as well as its structure, the
FCC's Restoring Internet Freedom draft order presents a convincing, straightforward
explanation for why broadband Internet access service is a Title I "information
service" and not a Title II "telecommunications service." The
draft order's restoration of Title I classification for both fixed and mobile
broadband Internet access services is also strongly backed by pre-Title
II Order agency precedents that the
Supreme Court and lower courts previously upheld.
If the Restoring
Internet Freedom draft order is adopted and subject to appellate
review, the order's reading of the statute and resulting conclusion that
broadband Internet access services are information services should be upheld in
court. And if a reviewing court applies the deferential Chevron standard of review for agency
interpretation of federal statutes, the order's legal validity should be a
foregone conclusion. Needless to say, if the reviewing
court employs the ultra-deferential posture taken in USTelecom v. FCC, the order passes
in a cakewalk.
The
FCC is set to vote on its Restoring Internet Freedom draft order at its December 14
public meeting.
Posts
