Today the D.C. Circuit Court of Appeals held oral arguments on the FCC’s Open Internet (Net Neutrality) Order in Verizon v. FCC. The following statement can be attributed to Berin Szoka, President of TechFreedom, and Geoffrey Manne, Executive Director of the International Center for Law and Economics:
Net neutrality regulation isn’t really about protecting consumers. It’s about protecting the FCC’s existence in a world that, increasingly, doesn’t need the the aging agency. The Internet has fundamentally changed the communications market, shifting traditional telecommunications services from the outdated technologies the agency regulates to new ones beyond its ossified authority. Even the FCC gets this.
The Open Internet Order was a Hail Mary pass to try to assert jurisdiction over broadband. It won’t work — if today’s arguments are any guide. The court seems likely to strike down the Order as an illegal attempt to impose railroad-style common carrier regulation on a vibrant, changing industry. Unlike the FCC’s data roaming rule, the Net neutrality rules don’t leave room for flexible negotiations between carriers.
If the FCC’s lucky, the court’s decision will leave room to write new, more flexible rules that bar only truly harmful business practices. But the agency won’t need to: broadband is already governed by the same antitrust and consumer protection laws that govern the rest of the economy. The FCC claims that only it can protect consumers. But the Federal Trade Commission and Department of Justice already have more than enough authority — and they know how to use it in ways that actually promote investment and innovation.
The Order’s no-blocking and transparency rules make a lot more sense than its non-discrimination rule, which effectively bars innovative arrangements for new services. Still, leaving these two rules in place would significantly lower the bar for the FCC to impose regulations that simply aren’t needed, without really having to justify them in any meaningful way.
Check out our detailed legal analysis of key issues raised at today’s hearing, the guide we blogged this morning before the arguments, and TechFreedom’s amicus brief (on constitutional issues the court may not reach).