WASHINGTON D.C. —­­ Last Friday, TechFreedom took the next step in challenging the FCC’s claim of sweeping power over the Internet. On behalf of a group of Silicon Valley entrepreneurs and investors, TechFreedom asked the full D.C. Circuit Court of Appeals to re-hear challenges to the FCC’s 2015 Open Internet Order. Our petition states:

The FCC boasts that it has created a “Title II tailored for the 21st Century,” a modernized, “‘light-touch’ approach” suitable for regulating broadband Internet access service. Yet despite “extensive” forbearance (what the FCC calls “tailoring”), some of Title II’s significant provisions continue to apply. And the FCC’s assertion of Title II jurisdiction, combined with inherently ephemeral tailoring, represents a claim to both broad new powers and unfettered discretion to decide if and when to deploy them. If the Order stands, then broadband Internet access service providers will be subject to the type of regulatory framework that governed 19th century railroads, their only relief being that the FCC might be merciful and forbear, sometimes, from enforcing some parts of Title II.

In June, a three-judge panel of the D.C. Circuit voted 2-1 to uphold the FCC’s reinterpretation of critical terms in the Communications Act. The FCC not only reclassified broadband as a Title II common carrier but also opened the door to Title II regulation of other FCC services, such as VoIP services like Skype, Apple Facetime and Facebook video calling. The dissent objected strongly, arguing that the FCC’s rationale for reclassification was impossible to reconcile with its arguments for “net neutrality” regulation.

Our petition builds on the dissent, tying the case to the Supreme Court’s decision in UARG, in which the court ruled that the EPA’s extensive “tailoring” of its statute revealed a fundamental disconnect between the agency’s regulations and what Congress intended.

The fact that the FCC has forbearance authority while the EPA did not is irrelevant,” explained Berin Szóka, President of TechFreedom. “In UARG, the Supreme Court was focused on the agency’s admission that it needed to ‘tailor’ the statute, and what that says about Congress’s original intent. Moreover, the FCC’s ‘broad’ forbearance leaves in place the core provisions of Title II, Sections 201(b) and 202(a). And the FCC can always reverse forbearance anyway.”

The court also erred by granting Chevron deference to the FCC on an issue of such deep political and economic significance,” continued Szóka. “The Supreme Court has increasingly insisted that courts must interpret statutes for themselves when so much is at stake—to ask what Congress really intended. In King v. Burwell, that meant upholding key provisions of Obamacare, lest the entire act collapse, thus frustrating the overall intention of Congress. Here, the analysis points in the opposite direction: Congress intended that the Internet remain ‘unfettered’ by regulation. The FCC must not be allowed to rewrite the Telecom Act to suit its shifting political agenda.”

In a tweet on Friday, FCC Chairman Tom Wheeler remarked that “It’s no surprise that the big dogs have challenged the court decision upholding @FCC’s strong #OpenInternet rules.”

Szóka responded: “On behalf of Internet entrepreneurs, investors and users, we’re standing up to the biggest, baddest ‘dog’ of all: the FCC. If Wheeler has his way, the FCC will be a purely political tool, wielded for favored companies and against opponents. And Title II regulation won’t stop at broadband or ‘net neutrality’: the FCC has effectively erased the line between the Internet and 1930s telephone network regulation—a line that Jeff Pulver, one of our intervenors, lobbied the FCC to draw back in 2004. If the courts don’t stop this power grab, no one will be safe.”

Those who’ve cheered the activism of Obama’s FCC should think carefully about the next one,” warned Szóka. “President Obama’s commandeering of a supposedly independent agency has opened the door for his successors to do the same—and worse.” Szóka outlined three scenarios:

  1. “If the White House lurches left, the FCC will do all the things that broadband providers most fear, from broadband price controls to unbundling mandates. They could use the core provisions of Title II the FCC isn’t forbearing from or simply undo forbearance under the same we-can-change-our-minds-whenever-we-want rationale the FCC currently invokes to justify reclassification.
  2. If a principled free-marketeer someday takes the White House, the FCC could use Wheeler’s we-can-forbear-whenever-want precedent to gut this Order — and potentially the rest of the statutes Congress has given the agency.
  3. And if the White House winds up in the hands of an unprincipled pragmatist, the FCC will simply pick and choose which approach to take based on Machiavellian calculations of rewarding friends and punishing enemies.”

“Whatever happens,” concluded Szóka, “Internet regulation will oscillate wildly across Administrations. With such carrots and sticks, the FCC would be the most powerful, arbitrary and lawless, agency in America—unless the courts step up and start holding the FCC to what its statute actually says.”

TechFreedom is represented by Adam White and Derek Lyons of Boyden Gray & Associates, the leading constitutional boutique law firm founded by Boyden Gray, White House Counsel to President George H.W. Bush. Joining TechFreedom as Intervenors are:

  • Jeff Pulver, co-founder of Vonage and several other VoIP services, and namesake of the the Pulver Order, which declared VoIP a Title I information service
  • Scott Banister, best known as co-founder of IronPort, an email appliance provider acquired in 2007 by Cisco for $830 million, and “angel” investor to a variety of Silicon Valley startups
  • Charles Giancarlo, former executive VP and Chief Development Officer of Cisco, and innovator in mobile text, data and voice services through his company ItsOn
  • David Frankel, Silicon Valley entrepreneur and engineer focused on VoIP and other cloud-based collaboration services

Join us Tuesday, August 2 for a panel discussion of the case in D.C. and by livestream. Why did the court rule the way it did? What did the dissent say? What are the arguments on appeal, and how likely are the D.C. Circuit and Supreme Court to strike down the Order? How long will this all take, and what does it mean for the future of the Internet?


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