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How FCC Hurt Its Title II Anti-Stay Case

The FCC’s latest legal brief opposing a stay of its Open Internet Order, hurt its legal case more than it helped.

The FCC brief unwittingly: exposed a glaring internal inconsistency with the FCC’s Open Internet Order; spotlighted its arbitrary and capricious decision-making; and exposed a big mistake in its legal strategy.    

If the D.C. Circuit Court of Appeals panel rules on the legal merits of the industry’s petition, it remains very likely they will grant a partial stay of the Title II reclassification part of the FCC’s Open Internet Order.

Why Court Very Likely Will Stay FCC’s Title II Reclassification

Based on the latest best arguments this week from both the FCC and broadband petitioners, the D.C. Circuit Court of Appeals is very likely to partially stay the FCC Open Internet Order’s reclassification of broadband as a Title II service and imposition of a new Internet conduct standard -- in the coming weeks.

Expect Court to Partially Stay FCC’s Title II Internet Reclassification

In the coming weeks, expect the D.C. Court of Appeals or the Supreme Court to grant a partial stay, of only the FCC’s Title II reclassification of broadband and its new “Internet conduct standard” (not the FCC’s net neutrality prohibitions of blocking, throttling or paid prioritization), even though stay requests normally have a low probability of success, because petitioners must convince the court that they are likely to win on the merits and that the opposed action will cause irreparable harm.

ObamaNet vs EuroNet -- “Competing” Protectionist Industrial Policies

The US-EU “competition” of protectionist digital industrial policies -- U.S. Title II net neutrality vs. the EU’s emerging “platform neutrality” plans -- creates an ironic backdrop to negotiations for the US-EU Transatlantic Trade and Investment Partnership (TTIP) “free” trade agreement. Heightening the irony, the Obama Administration, not the European Commission, has been the protectionist digital industrial policy leader, trailblazing the political path for the EU’s Single Digital Market to follow.  

At least on the digital markets front, TTIP will be much less a commercial “free” trade negotiation and much more a political “fair” trade negotiation.    

The U.S. has long set the tone and trajectory for this digital “fair” trade dynamic in championing net neutrality to protect its Silicon Valley national champions, Google, Facebook, Amazon, Apple, Netflix, etc., and by skewing antitrust enforcement to benefit Google and Silicon Valley.

Nationalistic Net Neutrality Naiveté

The New York Times’ editorial, “Global Threats to Net Neutrality,” scolds the world for not following the FCC’s nationalistic concept of net neutrality.

They feign shock and indignation that Europe and India would dare think of politically doing what the FCC has done and impose their own national industrial policies -- under the convenient political cover of “net neutrality.”

America’s elites naively imagine that other countries’ authorities don’t “get the joke” of the FCC’s politically-contrived net neutrality policy.

Other countries’ authorities are not as gullible and pliant as American elites imagine them to be.  

They know “net neutrality” has become an increasingly vacuous political slogan, whose definition conveniently changes meaning like a chameleon changes colors.

They know the FCC is pressuring them to do as the FCC says and not as the FCC does on net neutrality.

Unnecessary Collateral Damage from FCC Title II Internet Regulation -- My Daily Caller Op-ed

 

Please read my latest Daily Callerop-ed entitled: “Unnecessary Collateral Damage from FCC Title II Internet Regulation.”

It explains why collateral damage will begin to pile up because the FCC’s Title II Internet regulation is so destructive and unnecessary.

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FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]

NetCompetition Hill Event: The Unnecessary Collateral Damage from FCC’s Title II Internet (3-26-15)

How Consumers, Innovation & Business Will be Collateral Damage of FCC's
Title II Utility Regulation of the Internet -- Why Only Congress Can Resolve Net Neutrality Legitimately

Date: March 26, 2015

Location: House Rayburn Building 2218

Time: 2:00 PM - 3:30 PM

Moderator: Scott Cleland, NetCompetition
Panelists:

FCC’s Title II Legal Case is Modern Version of “The Emperor Has No Clothes”

 

I.   Summary

Expect the FCC’s new Open Internet Order’s assertion of Title II authority ultimately to be rejected in court (90%), because of its core illegal confiscatory purpose and its serial ends-justify-the-means trampling of due process. 

The FCC’s Title II legal defense is a “modern” day version of “the Emperor has no clothesfable, where the vain FCC confidently parades in public clothed in the legal fabric that utopian legal alchemists have convinced the FCC is invisible only to those who are “hopelessly stupid” or “unfit for their positions.” Sadly, this emperor (the FCC) has no clothes (sustainable legal case).

NetCompetition on FCC Title II Internet Order

FOR IMMEDIATE RELEASE                                           

March 12, 2015    Contact:  Scott Cleland 703-217-2407

History Will Judge the FCC’s Regulation of the Internet as the FCC’s Biggest Mistake Ever

The FCC’s Order is Unlawful, Unconstitutional, Unwarranted, Unnecessary & Unworkable

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:

FCC Title II Protectionism Creates a U.S. Digital Single Market like EU’s

On February 26th, the FCC executed President Obama’s call to “implement the strongest possible rules” to regulate the Internet as a telephone utility under “Title II” of the Telecommunications Act.

Legally, the result of this “reclassification” was for President Obama and the FCC to assert regulatory jurisdiction over the Internet ecosystem, creating a de facto American “Digital [Internet] Single Market” industrial policy, like the European Commission is in the process of creating for the European Union.

Legally, America now has a single digital telecommunications/Internet market/ecosystem because the FCC is effectively reclassifying Internet traffic as Title II telecommunications and Title II is a holistic, end-to-end, 1934 regulatory regime designed for the FCC to decide most everything in the assumed monopoly telecommunications ecosystem from originating and terminating local access, long distance, phone and network equipment manufacturing, directories, etc.

Pages

Q&A One Pager Debunking Net Neutrality Myths