WASHINGTON D.C. — Yesterday, TechFreedom, CARI.net, and several leading Internet entrepreneurs filed their opening Intervenor brief opposing the Federal Communications Commission’s 2015 Open Internet Order. That order reclassified broadband providers as Title II common carriers, opened the door to broader regulation of Internet services by equating IP addresses with telephone numbers, and imposed regulations far broader than what the FCC initially proposed. TechFreedom’s brief, joined by Jeff Pulver, Scott Banister, Charles Giancarlo, Wendell Brown, and David Frankel, supports legal challenges filed by broadband providers, both large and small, and innovators.


The brief opens:

“Net neutrality” is a red herring; the issue before the Court is the FCC’s claim of unprecedented power to regulate the Internet without congressional authorization. And the alternative to the FCC’s unprecedented, unauthorized, and unchecked regulatory action is not a “regulatory vacuum.” The alternative, as Commissioner Pai observes,  is continued enforcement of generally applicable laws by general-purpose regulators, such as the FTC’s enforcement of consumer protection and antitrust laws passed by Congress pursuant to the Constitution’s checks and balances.

Congress never authorized the FCC to impose such sweeping regulations on the Internet,” said Berin Szoka, President of TechFreedom. “Indeed, the 1996 Telecom Act says just the opposite, that the Internet should remain ‘unfettered by Federal or State regulation.’ The Commission failed to demonstrate any significant or systematic abuses that required such a drastic move that could not have been addressed by existing laws or market forces. The FCC’s attempt to regulate-and-mitigate, trying to make Title II workable through sweeping forbearance, is precisely the kind of illegal statutory tinkering that the Supreme Court struck down last summer in UARG. That the Commission felt it necessary to ‘tailor’ Title II so extensively should have made it obvious that it took a wrong interpretive turn and that its ‘modernized Title II’ far exceeds what Congress intended.”

The Intervenor brief concludes:

In UARG, the Supreme Court refused “to stand on the dock and wave goodbye as EPA embarks on its multiyear voyage of discovery.” The FCC’s Order would go still further: to explore strange new issues, to seek out new jurisdiction and new powers, to boldly go where no regulator has gone before. It disregards Congress’s findings and expressly stated policy against Internet regulation, and the constrained, workable regulatory structure that Congress enacted and maintained in furtherance of that legislative policy.

For more about why Intervenors are challenging the FCC, read our motion to intervene.


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

  • “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

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 CARI.net:

Founded in 1997, CARI.net is an edge provider offering users “cloud” services based on the Internet, including Infrastructure-as-as-Service (IAAS) and Software-as-a-Service (SAAS). CARI.net also operates managed data centers. In both capacities, it negotiates with broadband providers for interconnection of Internet traffic. For its services, CARI.net relies upon an open and independent Internet, unfettered by burdensome federal oversight and regulation.

About Jeff Pulver:

Jeff Pulver has founded, co-founded, and invested in a number of Internet companies. In 1994, he founded Free World Dialup (“FWD”) as the first worldwide Internet telephony company; in 2001, he co-founded Vonage, among the world’s top VoIP providers. Pulver also has played a significant role in the FCC’s long-standing light-touch approach to Internet regulation; he was the namesake of a significant FCC order in 2004 — declaring VoIP to be a Title I information service — that was nullified by the new Open Internet Order.

About Scott Banister:

Scott Banister was an early pioneer in the email business, founding ListBot, an email list hosting service, in 1998, and selling the company to Microsoft in 2001. Banister has since worked with other start-ups as a board member and investor, including PayPal and eVoice, which offered the first email-enabled home voicemail service and which was acquired by AOL in 2001. In 2000, Banister co-founded IronPort, an email appliance provider that was acquired in 2007 by Cisco for $830 million. Banister is currently a leading “angel” investor to a variety of Silicon Valley startups.

About Charles Giancarlo:

Charles Giancarlo has been involved in the computer and Internet industries for over thirty years. In 2008, Giancarlo co-founded ItsOn, a company that is revolutionizing the delivery of mobile voice, text and data services. ItsOn’s technology allows users to control what apps get access to wireless bandwidth, when they get access, and how much to pay for it. It also allows third parties to “sponsor” bandwidth for specific apps, meaning that data used by that app would not be counted against the user’s monthly data plan.

About Wendell Brown:

Wendell Brown is a pioneering innovator of VoIP technology, having founded multiple successful VoIP companies including eVoice, Teleo, and LiveOps. Brown strongly believes his many inventions in VoIP and the resulting benefits to the US economy are directly due to the unregulated independence he has enjoyed to innovate freely on the Internet, and that the FCC’s Open Internet Order threatens to replace that independence with regulatory oversight that will stifle innovation.

About David Frankel:

David Frankel is a Silicon Valley entrepreneur and engineer focused on VoIP and other cloud-based collaboration services. In 2006, he founded ZipDX and currently serves as its CEO. ZipDX offers special kinds of “virtual meetings,” such as multilingual meetings using simultaneous (human) interpreters. Having delivered this service using both traditional telephony using the Public Switched Telephone Network (“PSTN”) and VoIP, Frankel has first-hand experience in operating both under Title II and Title I (thanks to the Pulver Order), and the corresponding differences in both regulatory burdens and taxation at the federal and state level.