Netflix

Do not let the FCC’s likely unlawful means of broadband Internet regulation, i.e. Title II, distract you from the additional likelihood that two primary ends of supposed net neutrality “policy canon” i.e. bans against “paid prioritization” and “two-sided markets” (only users should pay), are also likely unlawful, even under Title II, sans new legislation.

A preview of oral arguments December 4 before the D.C. Circuit Court of Appeals in the legal challenge to the FCC’s 2015 Open Internet Order warrants more than the already well-covered standard comparison of both sides legal arguments over the legality of Title II.

In the 2014 Verizon v. FCC decision, that overturned much of the FCC’s net neutrality “effort to compel broadband providers to treat all Internet traffic the same regardless of source,” Judge David Tatel’s starting point was what does the FCC want to compel from others and does it have the legal authority and latitude to do so – sans new legislation.

(This analysis assumes the near obvious that Judge Tatel will lead and write this decision.)   

You know there are big problems with the so called “principle” of net neutrality when the New York Times writes an editorial headlined “Why Free Can Be a Problem on the Internet” and their editorial has nothing to do with protecting consumers’ privacy/safety or protecting content from piracy, but it is only about the potential problem of consumers enjoying free Internet content for marketing purposes!

What a scandal! Someone call the FCC! Innovative commerce is happening on the Internet!

Few things make net neutrality activists look sillier, more nonsensical and hypocritical than their knee-jerk somber opposition to innovation in broadband pricing and marketing via differential pricing, sponsored data, zero-rating plans or other creative and experimental pricing or marketing plans – that all naturally result from a highly competitive wireless market.

Please don't miss my latest Daily Caller Op-ed, “Net Neutrality Trumping Privacy Undercut the US-EU Data Safe Harbor.”

• It is proof positive of the law of unintended consequences coming home to roost for the U.S. Government.

No surprise that political activist Larry Lessig, the intellectual leader of the net neutrality and anti-copyright movements, ran one of the most cynical, undemocratic, and stunt-driven Presidential candidacies ever, because that’s exactly the kind of cynical, undemocratic, stunt-driven campaigns his political followers have run to un-democratically dictate net neutrality and to undermine copyright protection online. 

The “common” thread of Mr. Lessig’s political grand strategies is his core elitist political assumption that people are stupid and that he can manipulate the masses into believing whatever he wants them to believe.  

It is supremely rich and ironic that Mr. Lessig would run a Presidential campaign with the stated singular purpose of ending “corruption” by passing his version of campaign finance reform legislation, with such an apparent corrupt political Presidential campaign strategy. 

Let’s review Mr. Lessig’s stated Presidential campaign strategy to see if it appears corrupt.   

Tim Wu, the self-described “policy advocate,” who coined the term “net neutrality;” who has been a leading activist for preemptively regulating broadband service like a utility despite scant evidence of any problem; who from 2008-2011 was Chair of the pressure group FreePress that ran the notoriously-deceptive “Save The Internet” campaign to force FCC net neutrality regulation that was overturned in court; who has been part of a decade-long PR demonization effort of broadband companies for first not having fast enough broadband speed relative to the world and then for enabling broadband “fast lanes” -- is now the “Senior Enforcement Counsel and Special Advisor” to the New York Attorney General, who is investigating Cablevision, Time Warner Cable and Verizon for allegedly providing broadband service at speeds less than the companies advertise.  

There are troubling signals that the FCC is gearing up to further increase regulation of cable -- on top of the extra-legal new utility regulation the FCC already did in its 2015 Open Internet Order. 

What is profoundly troubling is the abject illegitimacy of their premise for more regulation of cable, i.e. the FCC’s new arbitrary and capricious definition of broadband that illegitimately redefined long-recognized, strong broadband competition -- out of existence with the stroke of a pen.

So what are the signals of more cable regulation? Two speeches from the FCC Chairman, one from the FCC General Counsel, another from the DOJ Antitrust Chief, a variety of Hill and edge-industry entreaties to regulate cable more via new MVPD or ALLVID regulatory proceedings, (but of course without regulating favored edge providers), and an explosion of new opposition to the proposed Charter-Time-Warner merger (by the exact same cast of characters whose opposition doomed the Comcast-Time-Warner merger).

This broad simultaneous level of focused regulatory chatter and organized activity is not coincidental, but highly-orchestrated and abjectly illegitimate.

Why is more cable regulation abjectly illegitimate?   

The juxtaposition of Google tacitly accusing the EU with “digital protectionism” and “discrimination” as the EU’s Digital Chief, Günther Oettinger, visits D.C. and Silicon Valley, while the Google-created Internet Association this week asks for U.S. protection from ISP “discrimination” in an appeals court brief in support of the FCC’s Open Internet order – exposes exceptional hypocrisy.

Antitrust and privacy regulators around the world weren’t born yesterday. They know Google and its online platform allies want it both ways – manipulating policy to advantage them and disadvantage their potential competitors.

The FCC’s 218 page “brief” defending its Open Internet Order begs a big question.

How many times is it “reasonable” for any agency to assert that their core legal arguments are “reasonable” before they sound unreasonable? A few? Several? A dozen?

Of the 19 core statutory arguments in the summary defense of the FCC’s Open Internet order, TWELVE defend the order by declaring the FCC’s legal judgment was “reasonable.”

When arguing in court that the FCC has the statutory authority to common-carrier-regulate the Internet for the first time, shouldn’t the FCC be able to declare at least once in their summary defense: “the law says,” “precedent supports,” or at least “Congress intended?”  

The FCC’s latest legal brief defending its Open Internet Order, will represent the FCC’s “strongest possible” legal arguments for its Title II net neutrality case – a vainglorious legal fortress.

In reality, the FCC’s legal case is closer to a magnificent beach sandcastle.

Its downfall will be that its case is sand, on top of a sand foundation -- that won’t be able to weather the elements intact.

Consider some of the elements the FCC’s sandcastle legal case must withstand.

The term “net neutrality,” or direct Congressional authority to mandate the FCC’s concept of “net neutrality,” is not found in law.

Please don’t miss my latest Daily Caller op-ed:” Presidential Candidate Lawrence Lessig’s Far Left Net Neutrality Agenda.”

• It explains the central part net neutrality plays in his Presidential candidacy and it also poses two relevant accountability questions about whether or not Mr. Lessig’s net neutrality movement has respected his call for getting big moneyed interests out of America’s political process.