WASHINGTON D.C. — Today, FCC Chairman Tom Wheeler outlined (Wired op-ed, FCC “Fact Sheet”) the Open Internet Order he’ll share with other Commissioners tomorrow, which the agency will vote on at its February 26 meeting.

On February 5, at 9 a.m. EST, we held a briefing call on the FCC’s plans. Click here to listen to a recording, and here for a transcript.

“Tom Wheeler just shot himself in the foot,” said Berin Szoka, President of TechFreedom. “He just admitted that what the FCC is doing is effectively rewriting the law to suit its political agenda. Just last year, the Supreme Court blocked the EPA from doing much the same thing. The FCC was always going to face a difficult court fight, but Wheeler’s grandiose framing makes it even more clear that the FCC is heading for its third loss in court on net neutrality.”

“Wheeler has flip-flopped on two clear promises,” continued Szoka. “First, during his confirmation, Tom Wheeler promised Congress he’d seek Congressional authorization if the FCC lost in court. Now, he’s thwarting ongoing Congressional attempts to resolve the issue. Second, when the FCC proposed its rules, Wheeler promised that interconnection ‘is a different matter that is better addressed separately.’ Now, he’s expanding the concept of net neutrality beyond anything it’s ever meant. What’s next on the FCC’s slippery slope?”

“Wheeler’s op-ed and the FCC’s Fact Sheet raise more questions than they answer,” said Geoffrey Manne, Executive Director of the International Center for Law & Economics. “Among other things:

  • What, exactly, is the FCC reclassifying? Just retail broadband service, or broadband service provided to edge providers, as well?
  • What on earth is a ‘general conduct rule’? By what standard will it be enforced?
  • When Wheeler talks about ‘flexibility,’ is he talking about flexibility for innovators — or just regulators? How is a ‘bright line’ ban on paid prioritization consistent with maintaining flexibility to regulate the ‘as yet unimagined’ Internet of the future?
  • How, exactly, will the FCC draw the line between specialized services and the Internet?
  • How will the FCC justify reclassifying mobile broadband, given clear statutory language protecting it from Title II? And does Wheeler really not understand that the vast bulk of new investment in wireless services — including before 2010 — has been driven by anticipated demand for lightly regulated data services, not common-carrier voice services?
  • Most of all: Is this really the best the FCC can do at providing transparency on the single most important decision the agency may ever make? Will Wheeler release the actual text of the order before the vote, or will we have to wait months to read it?”

“Wheeler’s statement only affirms that Congress alone can resolve the decade-long fight over net neutrality,” said Szoka. “Wheeler is simply punting until the next election. After the FCC loses in court again, Congressional Democrats will finally have to negotiate over legislation. Republicans have proposed legislation that would do everything Obama has demanded — on top of what the FCC tried to do in 2010. Unfortunately, Democrats seem to be more interested in exploiting a perpetual fight about net neutrality for political gain than actually resolving the issue.

Wheeler’s op-ed declares that “my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks.” He intends to invoke Title II and then use forbearance to effectively rewrite the law. Perversely, this means forbearance will be used to justify greater regulation — the opposite of what Congress intended. In Utility Air Regulatory Group v. EPA, the Supreme Court last year ruled that by similarly “tailoring” the Clean Air Act, the EPA had effectively re-written the Act to include greenhouse gases as a pollutant, something Congress could not reasonably have intended to allow the agency to do. Such statutory rewriting is no more permissible here.

Szoka and Manne can be reached for comment at media@techfreedom.org. See more of our work on net neutrality and Title II, including:

About TechFreedom:

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.

About The International Center for Law and Economics:

The International Center for Law and Economics is a non-profit, non-partisan research center aimed at fostering rigorous policy analysis and evidence-based regulation.

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