WASHINGTON D.C. — Yesterday, TechFreedom filed comments urging the Federal Communications Commission to (a) reverse its claims of sweeping powers to regulate the Internet, (b) repeal the 2015 Open Internet Order, leaving in place only the transparency rule, which can be grounded in uncontroversial authority and which will help the FTC police the broadband market on its own, and (c) begin working with FTC and Congress to craft legislation to provide a lasting solution to the net neutrality debate. TechFreedom also joined with the American Legislative Exchange Council in additional comments exploring (d) the federalism problems raised by the FCC’s theories of legal authority for its net neutrality rules and (e) how state law legal remedies could help to police the broadband market after the FCC repeals most of its rules.
TechFreedom’s comments conclude:
Above all, the Commission should return to the “light touch” regulatory environment that allowed the Internet and its underlying communications technologies to flourish. However, the Commission should additionally understand and accept that a return to this “light touch” regulatory environment is not merely a suggestion, but legally required under Congress’ current statutory framework.
“The FCC should end its ‘voyage of discovery’ in Internet regulation,” said TechFreedom President Berin Szóka. “Under the previous administration, the FCC made two broad legal claims of vast authority under Section 706 of the Telecom Act and Title II of the Communications Act. Former Chairman Genachowski’s 2010 interpretation of Section 706 is a blank check for the FCC and state PUCs to regulate the Internet in any way that they claim will somehow promote broadband deployment and that isn’t clearly prohibited. As we’ve been warning since the Verizon decision, this is a Trojan horse for broader Internet regulation. Title II is a morass of monopoly-era regulation that outlaws pro-consumer network innovations, and will inevitably lead to rate regulation and other harms. These legal theories raise exactly the kind of ‘major questions’ the Supreme Court has been saying do not merit deference from courts to agencies. The FCC should disclaim both authorities, while grounding the 2010 transparency rule in ancillary jurisdiction — the 2010 Open Internet Order’s alternative basis for that rule. This would return us to the bipartisan approach that unleashed over a trillion dollars in broadband investment.”
TechFreedom has led a band of Silicon Valley entrepreneurs as Intervenors in the legal challenge to the FCC’s interpretation of Title II. Our “major questions” arguments have been cited by all three dissenting D.C. Circuit judges, including Judge Kavanaugh, whose 2012 dissent in the UARG v. EPA case led to the Supreme Court blocking the EPA’s attempt to “tailor” its statute on “major questions” grounds. TechFreedom will ask the Supreme Court to review the case in late September. TechFreedom has also taken the lead in opposing the FCC’s interpretation of Section 706, in 2014 FCC comments and its 2015 amicus brief to the Sixth Circuit.
“The end of Title II is not the end of net neutrality — it’s time to stop conflating the two,” continued Szóka. “Reversing Title II reclassification will restore the FTC’s authority to police the broadband market using its appropriately broad competition and consumer protection powers. The FCC and FTC should carefully study the economics of net neutrality and potential rules, and advise Congress on crafting legislation. Until Congress acts, telecom policy will continue to ping pong back and forth anytime the White House switches parties. The only way to resolve the net neutrality debate is with legislation that codifies the FCC’s disclaiming of broad authority while enshrining clear, simple, and stable rules to protect the open Internet.”
TechFreedom’s comments explore a compelling reason for legislation that has gone almost unnoticed: Section 230(c)(2)(A)’s “Good Samaritan” immunity would clearly protect any broadband provider for blocking content “in good faith.” While this exception might leave room for policing anti-competitive blocking, it would protect much of the hypothetical blocking of speech net neutrality advocates worry about most. Broadband providers may enjoy even broader immunity under Section 230(c)(1). Only Congress can craft rules that overcome these immunities.
“Those concerned that Republican-led law enforcement agencies won’t be aggressive enough should look to state law remedies,” Szóka continued. “State attorneys general and private plaintiffs have successfully prosecuted bad actors on grounds such as fraud, consumer protection or antitrust concerns, and will continue to do so. It will only take a few Democratic Attorney Generals to help keep broadband providers in check around the country. At a minimum, this means using marketing claims by broadband providers as a hook for deception claims, as the New York Attorney General is already doing. But there are also a host of other causes of action yet to be explored as alternatives to heavy-handed federal regulation.”
We can be reached for comment at email@example.com. See our other work on net neutrality, including:
- Tech Policy Podcast #174: Future of Internet Regulation (w/ FCC Chairman Ajit Pai)
- Our explainer on the distinction between Title II and net neutrality
- Our op-ed in Wired calling for legislation to resolve net neutrality
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.