After years of warning about the FCC’s claims of power to regulate the Internet, we achieved two great victories in 2017.
First, Chairman Ajit Pai did exactly what we’ve been urging for years. His “Restoring Internet Freedom Order” rolls back the claims of sweeping powers made under the previous two chairman. TechFreedom’s comments earned eight citations. Responsibility for policing broadband has been returned to the same consumer protection and competition authorities that police the rest of the economy. And for now, the Internet is safe from the FCC — not just as a clumsy, plodding roadblock to innovation but as a political weapon to be wielded against companies and people that don’t toe a political line, as I warned in a Washington Post op-ed in July.
Pai is eager to renounce such power — the Cincinnatus of telecom policy. But how many chairman, of either party, could resist such temptation? Unfortunately, Pai can’t stop future chairman from reclaiming broad power over the Internet. Only Congress or the Supreme Court can do that. We’re working hard on both.
We joined the lawsuit against the 2015 Order that year. Our fellow Intervenors aren’t broadband providers. They’re VoIP entrepreneurs who worry that the ever-expanding definition of “net neutrality” will hurt their services. They fear the FCC has opened the door to common carrier (public utility) regulation of not just broadband but “edge” services, too. In 2004, the FCC finally drew a bright line between the Internet and the telephone network, with all its regulatory baggage — after years of lobbying by VoIP pioneer Jeff Pulver, one of our fellow Intervenors. But the 2004 Pulver Order was effectively nullified in 2015.
No, we didn’t persuade the D.C. Circuit court of appeals to stop the FCC’s power grab. The court granted the agency Chevron deference, as almost always happens when agencies claim a statute is ambiguous. But we did get the dissenting judges to make our argument: that applying Chevron deference would be unconstitutional here.
Quoting Justice Scalia, Judge Kavanaugh wrote: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance…. The major rules doctrine helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority.” Exactly our point: without clear authority, the FCC shouldn’t be permitted to regulate the Internet.
The “major questions doctrine” isn’t a right-wing idea; it comes from Justice Breyer. And we couldn’t put it any better than Judge Kathleen O’Malley, a Clinton and Obama appointee, who rejected the International Trade Commission’s regulation of digital downloads as “articles” under its 1930s statute, saying: “The Internet is ‘arguably the most important innovation in communications in a generation.’ If Congress intended for the Commission to regulate one of the most important aspects of modern-day life, Congress surely would have said so expressly.”
Congress’s last word on this should stand: the Internet should remain “unfettered by Federal or State regulation.”
From the start, we were the only party making this argument. Only when it came time to ask the Supreme Court to take the case did the big companies challenging the FCC’s rules stop arguing about how to apply Chevron and start making constitutional arguments. But without TechFreedom, this argument would have been waived.
The Supreme Court won’t review our petitions until the government has filed its brief in February. By then, the next round of litigation — the fourth over the FCC’s powers since 2008 — may be underway. The high court may simply send our case back to the D.C. Circuit, which will almost certainly uphold Pai’s order for the same reason it upheld the last two orders: Chevron deference.
If so, the ball will be in Congress’s court. We’ve led the call for a legislative compromise to resolve this fight for years — even before Republicans proposed legislation in January 2015. “Only Congress can craft a solution that is appropriately narrow, avoids endless legal challenges, and puts this divisive issue behind us,” we said in a broad coalition letter to Congressional leaders back then. Helping lawmakers and all stakeholders understand how to resolve this fight will be out top priority in 2018 — so we can move on to pressing issues like easing broadband deployment for all Americans. If you only read one thing, read my WIRED op-ed from May.
There’s reason for optimism: Republicans have again proposed legislation to codify net neutrality principles. It’s not perfect: it won’t completely stop the FCC from inventing power to broad regulate the Internet. But it’s a start.
Meanwhile, it’s been nearly seven years since Democrats put a proposal on the table. Most seem eager to keep up a fight that excites their base. But when efforts to block Pai’s Order fail in Congress and in court… maybe Winston Churchill’s quip will be proven right? “You can always count on Americans to do the right thing — after they’ve tried everything else.”
Or maybe Congress will miss the boat on legislative compromise again, as in 2006, 2010, and 2015? This fight might not end until the Supreme Court finally addresses our arguments. If that doesn’t happen in 2018, it may not happen until two years into the next Democratic administration. If so, TechFreedom will already have laid the groundwork for that challenge: Judge Kavanaugh is widely considered the best barometer of where the Supreme Court is heading on administrative law.
Either way, TechFreedom will continue working both tracks. We’ll keep educating the democratically elected representatives of the American people about how to resolve legitimate disagreements on how best to police net neutrality concerns. But we’ll keep insisting — both in Congress and the courts — that the FCC cannot be allowed to keep claiming “boundless authority to regulate the internet for whatever it sees fit,” as even the net neutrality stalwarts at the Electronic Frontier Foundation warned in 2011.