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Capricious Net Neutrality Charges – Part 32 FCC Open Internet Order series

Net neutrality is in the eye of the beholder.

It’s rapidly devolved into a gotcha game -- where if someone doesn’t like something or someone, they cry “net neutrality violation!” and call for an FCC investigation -- under the FCC’s self-asserted, all-powerful Open Internet order.  

Senators and Representatives are now writing the FCC urging it to investigate CBS.com for an alleged net neutrality violation over a contract dispute over how much Time Warner Cable pays for retransmitting CBS programming. The FCC could have a role in this retransmission dispute under obsolete 1992 law, but not legitimately under the FCC’s Open Internet order.

The fact that U.S. senators and representatives imagine that a billing dispute among companies could be considered a net neutrality violation illustrates how arbitrary and capricious net neutrality politics and the FCC’s Open Internet order have become.

Apparently there is no objective, reasonable or predictable standard of what net neutrality is or what a violation of “it” is. That net neutrality has transmogrified into a political-catch-all for anything affecting consumers is powerful proof of how capriciously this issue has been abused.

Why has net neutrality become so capricious?

A la Carte TV Uneconomics

Please see my latest Daily Caller Op-ed on proposed A la carte TV Legislation -- here

  • It is Part 11 of my Defending First Principles Series.

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Defending First Principles Series

Part 1: Debasing Free Speech as No-Cost Speech

U.S. Competition Beats EU Regulation in Broadband Race – Part 30 – FCC Open Internet Order Series

They were so wrong. To justify FCC market intervention, U.S. proponents of EU-style, heavy-handed broadband regulation trumpeted the narrative that the U.S. was falling behind the world in broadband.

The pro-regulation chorus of Free Press, Save the Internet, Public Knowledge, Susan Crawford, the Harvard Berkman Center, et al, sung from the same made-up song sheet that American business was failing and Government needed to take control of broadband networks to restore American leadership and prevent private enterprise from discriminating and censoring Americans free speech.

Now we know how tall a tale these pro-regulation pressure groups were willing to spin to advance their interventionist net neutrality agenda.

Facts are pesky things and the facts show that the U.S. is strongly leading the EU in the broadband race. It is so obvious even top EU officials admit the EU “needs to catch up.”

Let’s review the latest facts.

More Legal Trouble for FCC’s Open Internet Order & Net Neutrality -- Part 29 FCC Open Internet Order Series

The D.C. Circuit Court of Appeals 3-0 decision to overturn the FCC in Comcast v. FCC/Tennis Channel spells more trouble for the ultimate legality of the FCC’s Open Internet Order. That decision spotlights that three additional D.C. Circuit Appeals Court’s judges do not agree with the FCC’s reading of the law and the facts concerning lawful network discrimination.

On the margin, this new decision should make Verizon more confident and the FCC less confident in the outcome of Verizon v. FCC.

Overall, I believe Verizon remains more likely than not to prevail in its challenge of the FCC net neutrality regulations in the FCC’s Open Internet Order, because Verizon only needs to prevail with one of its many strong arguments while the FCC must win on all of them.

How is this latest D.C. Circuit decision relevant to the FCC Open Internet order case?

Little Impact on FCC Open Internet Order Appeal from SCOTUS Chevron Decision -- Part 28 FCC Open Internet Order Series

What’s the impact on the Verizon appeal of the Open Internet Order of the Supreme Court’s strong reaffirmation of its Chevron deference standard, in Arlington v. FCC?

I believe Verizon is still more likely than not to prevail on the merits of its appeal, because the FCC’s Open Internet Order is so unambiguously far outside the bounds of the FCC’s statutory authority, that Chevron deference is unlikely to apply.

If the SCOTUS had not strongly reaffirmed Chevron deference, the FCC would have faced an even steeper fight in the Open Internet Order. Despite the SCOTUS decision not being particularly helpful in the specific FCC Open Internet case, it undeniably was very FCC-friendly overall. That’s because it affords the FCC more latitude to exploit the many legally-ambiguous seams of communications law to advance its various regulatory agendas in highly-targeted ways.

Wireless Plan Innovation Benefits Consumers & Competition -- Part 15 Broadband Internet Pricing Freedom Series

Please see my latest Daily Caller Op-ed "Wireless Plan Innovation Benefits Consumers & Competition -- here.

  • It debunks net neutrality criticism of a reported potential ESPN-wireless pricing experiment.
  • It is also Part 15 of my Broadband Internet Pricing Freedom research series.

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Broadband Internet Pricing Freedom Research Series

Part 1:    Netflix' Glass House Temper Tantrum Over Broadband Usage Fees

Will the New FCC Chair be a Modernist or a Nostalgist? -- My Daily Caller Op-ed -- Part 4 of Modernization Consensus Series

Please read my latest Daily Caller Op-ed: "Will the New FCC Chair Be a Modernist or Nostalgist?" -- here.

  • It's Part 4 of my Modernization Consensus Research Series. 

 

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Modernization Consensus Series

(Note: This research series previews strategic developments that could encourage consensus to modernize obsolete communications law.)

Don't miss Litan-Singer book: The Need for Speed

Kudos to Robert Litan and Hal Singer for the clarity-of-thought and free market policy wisdom in their new book: “The Need for Speed: A New Framework for Telecommunications Policy for the 21st Century.” Here is the link to the book at Amazon.

Oops! Professor Crawford’s Model Broadband Nation, Korea, Doesn’t Support Net Neutrality & Favors Market Concentration

As Professor Crawford continues her book tour advocating for a broadband utopia of an ultra-fast, government-subsidized, public-utility-regulated, broadband network with net neutrality, the supposed-facts undergirding her proposal, are crumbling away.

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Q&A One Pager Debunking Net Neutrality Myths