TechFreedom Files Petition for Cert in Case Against Title II

WASHINGTON D.C. — Yesterday, TechFreedom and three leading VoIP pioneers asked the Supreme Court to block the FCC’s sweeping claims of power over the Internet. Our petition for certiorari repeated the argument we alone have made at every step of this litigation: that whether to impose heavy-handed common carriage regulation on the Internet is a “major question” that can only be decided by Congress.

“This case has never really been about net neutrality,” said Berin Szóka, President of TechFreedom. “Congress could have, and should have, resolved that issue years ago — through legislation narrowly tailored to protect consumers and competition from real, not phantom harms. Instead, we’ve all spent the last nine years fighting in court about the FCC’s legal authority over the Internet — culminating in the FCC’s 2015 decision to subject broadband to what Bill Clinton’s FCC Chairman had called the ‘morass’ of Great Depression-era telephone regulation.”

“The Open Internet Order defied 20 years of bipartisan consensus that a regulatory light-touch would drive broadband investment,” continued Szóka. “Further, the particularly contorted rationale for ‘reclassifying’ mobile broadband as a common carrier service erased the clear line drawn by the FCC’s 2004 Pulver Order between the Internet and the telephone network.”

That order is named for Jeff Pulver, one of TechFreedom’s fellow Intervenors, who founded the first worldwide Internet telephony company in 1994, co-founded Vonage in 2001, and led Silicon Valley’s efforts through 2004 to get the FCC to clarify that Voice over Internet protocol services (VoIP) would not be regulated like traditional telephony. In 2014, Pulver warned:

The madness of applying Title II means declaring everything telecom. It requires an entirely new standard and ends 60 years of precedent underlying the telecom versus information services distinction. The Federal Communication Bar Association may not see a problem, but I can attest I have no idea how to judge the difference between IP transmission and IP services for the purposes of my next startup. I will not be able to explain it to investors, because the line exists entirely in the mind of whoever happens to be Chairman of the FCC. Applying Title II to IP networks creates a new Federal Computer Commission with authority to weigh in on everything connected to an IP network, in other words — everything.

“We’ve always thought of this as a question for the Supreme Court to resolve,” concluded Szóka. “In a series of recent decisions, the Court has said exactly what Judges Kavanaugh and Brown said in their dissents: the Constitution’s separation of powers requires decisions of such vast economic and political significance to be made by elected lawmakers, not bureaucrats reading broad powers into statutory arcana. Yes, we expect the FCC to undo the 2015 Order, but that won’t stop the next Democratic FCC from redoing it. Congress could resolve this fight, but thus far Democrats haven’t come to the negotiating table. Without legislation, it’s up to the Court to finally decide whether Congress really meant it in 1996 when it said the Internet should remain ‘unfettered by Federal or State regulation.”

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We can be reached for comment at media@techfreedom.org. See our other work on net neutrality, including:

  • Tech Policy Podcast #172: The Future of Internet Regulation (w/ FCC Chairman Ajit Pai)
  • Our statement on the need for a legislative compromise over net neutrality
  • Our statement on the D.C. Circuit’s denial of rehearing.
  • Our statement on our appeal over the DC Circuit’s decision upholding Title II reclassification
  • A summary of our opening brief challenging the FCC’s order
  • Our first intervenor brief challenging the OIO
  • Our reply brief arguing against the Order
  • Our motion to intervene, explaining the harm suffered by our co-Intervenor entrepreneurs

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.

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