Yesterday, TechFreedom filed comments in response to the Federal Communications Commission’s (FCC) Notice of Proposed Rulemaking (NPRM), which proposes to claim broad powers over broadband Internet access service (BIAS) by classifying it as a telecommunications service under Title II of the Communications Act. 

“Net neutrality is alive and well—even without the FCC rules,” said Berin Szóka, President of TechFreedom. “Consumers demand unrestricted access to the Internet, ISPs promise to meet that demand, and the Federal Trade Commission already ensures that consumers get what they’re promised. The broadband market is working just fine. There’s no need for the FCC to do more than what it does now: require disclosure of any non-neutral practices.”

The two examples of non-neutrality cited by the NPRM just don’t hold up,” continued Szóka. “The firefighters whose data use was supposedly throttled during an emergency shouldn’t have chosen a barebones data plan with speed restrictions. In any event, Title II doesn’t apply to plans marketed to government users, so reclassification wouldn’t have mattered. The other example involved a tiny rural ISP briefly threatening to block Facebook and Twitter after those sites banned former President Donald Trump. If such blocking were properly disclosed, the edited broadband service wouldn’t have been subject to the FCC’s rules anyway, as the judges who upheld the FCC’s 2015 rules made clear in rejecting a First Amendment challenge to Title II reclassification.”

“Regulating broadband like railroads is a major question that the Supreme Court will not allow the FCC to decide without clear authorization from Congress,” Szóka continued. “Title II would give the FCC sweeping powers to decide how broadband service is offered, operated, deployed, and priced. Reclassification would terminate the jurisdiction of the FTC and replace it with a regulatory system that assumes market failure and accordingly gives the FCC vast discretion over an industry that invested a staggering $86 billion last year in its networks. The more ‘essential’ the FCC claims the Internet is, the less likely the Supreme Court is to allow the FCC to control it. In fact, the Court has already ruled that the Telecommunications Act is ambiguous as to the proper regulatory classification of broadband. Ultimately, how to govern broadband is a question for democratically elected representatives—not the unelected commissioners of the FCC.”


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