Net Neutrality Rules Violate Bill of Rights, Opponents Argue

TechFreedom, Competitive Enterprise Institute, Free State Foundation, and the Cato Institute said the FCC had “noble” intentions, but its network neutrality regulation benefits content providers at the expense of broadband providers’ constitutional rights (http://xrl.us/bnh2qv). “By denying Internet service providers their editorial discretion and by compelling them to convey content providers’ messages with which they may disagree, the Order violates broadband providers’ First Amendment rights,” the groups wrote. “The Order serves no compelling government interest: it ’solves’ a ‘problem’ even the FCC admits is almost entirely theoretical."

They argued the order violates the Fifth Amendment’s prohibition on takings without just compensation “by giving content providers a permanent easement for nearly unfettered use of network owners’ physical property (the cables and wires constituting their networks).” And the FCC’s assertion of “ancillary authority” to regulate the Internet “arrogates a boundless, and therefore dangerous, amount of power to itself,” they said. They urged the court to be “cautious” in allowing the FCC ancillary authority to regulate the Internet, and encouraged reconsideration of agency ancillary powers entirely, which they called “an increasingly anomalous doctrine grounded in pre-Chevron Supreme Court case law” that “conflicts with modern administrative-law limits on agency power."

State policies in favor of property rights and free markets compelled Virginia, Georgia, Michigan, Oklahoma, South Carolina and West Virginia to file an opposition to the order, they said. Congress gave the FCC the power to regulate certain telecom providers as common carriers, but withheld regulatory authority over information service providers and private mobile service providers, they said. “Because the FCC’s interpretation of Congress’ delegation, where it does not actually violate its express terms, is untethered to the statutory text and knows no logical limit, it should be rejected."

In subjecting broadband Internet providers to common-carrier regulation by fixing prices, prohibiting discrimination between users and uses, and requiring public disclosure of practices, the commission went beyond its authority under the Communications Act, the states argued. The FCC’s reliance on ancillary authority to regulate the Internet should fail because it is “untethered to and unbounded by” the statutory delegations of authority: “No provision of the Act may be fairly read to foreshadow, much less intend, FCC regulation of broadband Internet access as undertaken in the Order,” they said.

Regulation of broadband Internet services “has the potential to impose burdens on American manufacturers, harming American consumers, preventing the creation of new jobs, and stifling the rollout of high-speed services to unserved and underserved areas,” the National Association of Manufacturers wrote. The FCC lacked authority to adopt the net neutrality rules because Congress did not intend Section 706 of the Telecommunications Act to vest the FCC with broad independent authority to regulate the Internet, the group said. Section 706 directed the commission to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability” such as “high-speed, switched, broadband telecommunications."

Even if the FCC did have Section 706 authority, the order ignored extensive evidence contradicting its speculative theory that net neutrality regulation would promote broadband adoption. “Any action undertaken pursuant to Section 706 must promote the deployment of broadband,” the NAM wrote. “The FCC relied on an unsupported, contorted theory, speculating that net neutrality mandates would lead to adoption of broadband by new users, which would in turn promote the statutorily required broadband network deployment.” Evidence before the FCC contradicted those assertions, but the commission neither refuted nor even addressed that evidence, NAM said. “The agency may not rely on speculation, and may not simply ignore evidence undermining its view,” NAM said.

"We look forward to defending our open Internet rules in court,” an FCC official said. “This strong and balanced framework is helping ensure that the Internet continues to thrive as an engine for innovation, investment, job creation, and free expression.” The FCC’s brief in support of the order is due Sept. 10. Briefs of intervenors in support of the FCC -- the Open Internet Coalition, Public Knowledge, Vonage and NARUC -- are due Oct. 3.