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Video: Why FCC Title II Reclassification of Broadband is a Legal Non-Starter – Part 6 of Title II Reclassification Series

Expect net neutrality proponents to pressure the FCC to reclassify broadband as a Title II common carrier telephone service, if as many expect, the D.C. Appeals Court overturns much, or possibly all, of the FCC’s Open Internet Order in the coming months.

Observers of the September 9th oral argument heard Judges Tatel and Silberman strongly question the legality of applying common carrier-like regulation to an unregulated information service.

If you want to know why it would be a legal non-starter for the FCC to then completely reverse course and try to reclassify broadband as Title II common carrier service, please listen to my video explanation, starting at 7:52. (The written version of my argument is part 5 of this post.)

Professor Crawford’s Desperate Search for a Problem to Regulate – Part 26 Net Neutrality Series

Professor Susan Crawford’s Bloomberg op-ed, “New FCC Head Must Reclaim Authority over Telecom,” exposes a profound lack of substance, in being unable to identify any real market problem warranting FCC regulation.

Let’s review Professor Crawford’s litany of contrived policy problems.

First, she charges that ISPs are working “to ensure no regulator has any real authority over them.” No, ISPs are pointing out the unique excessiveness of having THREE government entities having authority over them on the same general matters. ISPs are not asking for any reduction in authority for the DOJ or the FTC. Specifically, Verizon is asking the D.C. Appeals Court to decide if the FCC exceeded its legal authority in imposing prophylactic common-carrier-like regulation on companies that have not done anything wrong.   

5 BIG Implications from Court Signals on Net Neutrality – A Special Report -- Part 34 FCC Open Internet Order Series

Economic rationality, competition, and broadband pricing freedom are the big winners, and common carrier-like net neutrality was the big loser, if the Appeals Court panel decides Verizon v. FCC as expected.

Monday’s intense tag-team grilling of the FCC’s lawyer by Judges Tatel and Silberman left most observers thinking the Court will decide it is illegal for the FCC to impose common-carrier-like regulation on broadband providers -- regardless of what else they decide.  

NetCompetition Press Release on Verizon v. FCC Court Oral Arguments

FOR IMMEDIATE RELEASE                                           

September 9, 2013

Contact:  Scott Cleland                                                 

703-217-2407

 

 

“A Very Good Day for Broadband Pricing Freedom”

Google-YouTube’s Internet Video Distribution Dominance -- Part XII of Googleopoly Research Series

Please click here for Google-YouTube's Internet Video Distribution Dominance -- Part XII of my seven-year, Googleopoly research series. 

  • This is must read for anyone interested in: Google antitrust; Google's liability for willful blindness to piracy and copyright infringement, and the legal implications of Google trying to solve its access-to-quality-video content-problem by acquisition of Dish, DirecTV or a major studio/TV network.

 

Google-YouTube’s Internet Video Distribution Dominance -- Part XII of Googleopoly Research Series

  • Why Internet video distribution competition is substantially lessened;
  • How Google-YouTube anti-competitively gained Internet video distribution dominance; &

Professor Crawford's Obsolete Public Utility Thinking for Broadband -- My Daily Caller Op-ed

Please see my latest Daily Caller Op-ed "Professor Crawford's Obsolete Public Utility Thinking for Broadband" -- here.

  • It's a critical review of Professor Susan Crawford's new book on broadband and media concentration.
  • It's also Part 16 of my Obsolete Communications Law research series.

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Obsolete Communications Law Research Series:

Note: Please see here for a summary powerpoint presentation of the problems with obsolete communications law.

Supreme Court likely to leash FCC to the law

In an ominous development for the FCC, the Supreme Court agreed Friday to hear the legal question of whether a Federal Court must give "Chevron deference" to an administrative agency (FCC) when an agency interprets a law in a way which could determine its own jurisdiction. I believe this presages that the Supreme Court will decide next year that regulatory agencies cannot be the effective final arbiter of their own power and jurisdiction under the law, because that constitutional power rests with Congress and the courts.

"Chevron deference" is a 1984 Supreme Court administrative law precedent that directs courts to defer to a regulatory agency's expertise in interpreting statutes directing regulatory action unless their interpretation is unreasonable.

FCC Creates "Abundant" Uncertainty -- Part 12: Broadband Internet Pricing Freedom Series

Unfortunately, the FCC Chairman's remarks to a Silicon Valley audience last week -- trumpeting his new concern for "anything that depresses broadband usage" -- are creating abundant uncertainty for broadband businesses and investors.

Specifically, Gigaom reported: "When asked about the impact of data caps on broadband innovation by my colleague Janko Roettgers and how his thinking had evolved on the topic, the chairman said he was concerned about data caps. He added, “Anything that depresses broadband usage is something that we need to be really concerned about.” And he further said, “We should all be concerned with anything that is incompatible with the psychology of abundance.”

This appears to signal a stupefying 180-degree reversal of the FCC Chairman's well-established policy position on broadband usage pricing.

U.S. Net Neutrality Movement in Retreat

Recent evidence confirms that the U.S. net neutrality movement is in substantial retreat and trying to fall back to more defensible ground, on which to make its next stand. The movement is by no means defeated overall, as it is resilient, well-funded and organized. It is actually in ascendance in Europe with the European Parliament's vote supporting net neutrality.

Importantly FreePress, the clear leader of the net neutrality movement via its six-year stewardship of SaveTheInternet.com, recently asked the D.C. Court of Appeals for permission to withdraw its legal challenge to the FCC's net neutrality rules for not being strict enough. After six years of full-throated constant campaigning for net neutrality legislation or FCC regulation in the U.S., it is remarkable that FreePress has quietly retreated from the latest and most pivotal net neutrality battlefield in the U.S. -- i.e. whether or not the FCC's net neutrality regulations stand or are thrown out by the D.C. Court of Appeals. FreePress' emailed statement to reporters said: "We felt that there were better ways to accomplish our goals of promoting Internet freedom, and decided to direct our resources elsewhere in the continued campaign to preserve the open Internet."

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Q&A One Pager Debunking Net Neutrality Myths