If FCC Wins, It Could Impose New Taxes, Ban Encryption

WASHINGTON D.C. — Today, the FCC goes to court over “net neutrality” regulation — for the third time. The D.C. Circuit hears oral arguments on U.S. Telecom Association v. FCC, a case with vast implications for the Internet, including the raging debate over crippling encryption.

TechFreedom is leading a group of intervenor-plaintiffs challenging the statutory reinterpretations that undergird the FCC’s Open Internet Order. The group includes Cari.net, a small hosting provider, and leading Silicon Valley entrepreneurs and investors, including several pioneers of Voice over Internet Protocol (VoIP) service.

Join us Tuesday, December 8th at 10 a.m. ET for a recap of the oral arguments that took place today. Please RSVP here.

‘Net neutrality’ is a red herring,” said Berin Szoka, president of TechFreedom. “The real issue is, and always has been, the FCC’s attempt to invent authority to regulate the Internet despite clear direction from Congress that the Internet remain ‘unfettered’ by regulation.”

Congress could have resolved this issue years ago—and likely would have if the FCC had stayed within the bounds of law,” explained Szoka. “Republicans led a veto-proof majority in 2006 to give the FCC clear authority over core net neutrality concerns. Democrats tried to broker a deal in 2010. This year, Republicans have offered to essentially reinstate the FCC’s 2010 rules. All that remains in the way of a legislative deal is the FCC’s obstinance — and the angry clicktivist mob that has made it impossible for Congressional Democrats to finally resolve this fight without giving the FCC a blank check to regulate the Internet or impose billions in new broadband taxes.”

“In 2010, the FCC’s institutional obsession with self-aggrandizement led it to the preposterous claim that Section 706 allows it to regulate any form of ‘communications’ in any way that it claims, however tenuously, will promote broadband investment,” continued Szoka. “After the court struck down the FCC’s 2010 rules last year, the FCC could have used this power to tailor its rules to ensure that they did not impose full-blown common carriage. Instead, the FCC chose the most draconian route possible: equating the Internet with the telephone network in order to claim the sweeping discretion given to the FCC in 1934 to both tame and perpetuate the AT&T telephone monopoly.”

”The FCC claims it will only use its vast new powers to police broadband, but its legal theories erase the once-clear line that protected ‘edge’ companies from heavy-handed Title II regulation,” warned Szoka. “Even worse, expanding the definition of ‘telecommunications’ could allow the FCC to give the FBI what it knows Congress cannot, politically: a ban on end-to-end encryption. The FCC could use its logic for reclassifying mobile broadband to impose the 1994 Community Assistance to Law Enforcement Act on edge services like chat and video platforms.”


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

  • TechFreedom’s opening brief and reply brief challenging the FCC’s Internet regulation
  • “3 Reasons Why We’re Challenging the FCC in Court,” a statement from TechFreedom summarizing its motion to intervene against the FCC’s Open Internet Order
  • Highlights from legal and policy comments filed by TechFreedom and the International Center for Law & Economics on net neutrality, and our reply comments
  • “The FCC’s Net Neutrality Victory is Anything But,” an op-ed by Geoffrey Manne, in Wired
  • Coalition letter urging Congress to rein in the FCC’s authority to regulate the Internet
  • Amicus brief led by TechFreedom in Sixth Circuit litigation over the meaning of Section 706