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Below is my op-ed “Privacy’s Big Three” on the FCC’s pending interpretation of its newly asserted Title II section 222 privacy authority. It is a side-bar in this week’s Multichannel News cover story “Who’s Watching Whom?” Click here for the full Multichannel article.

This succinct op-ed spotlights the three biggest privacy questions the FCC must grapple with here:

1. Any privacy protection predictability?
2. Any competitive privacy policy parity?
3. An FCC Do Not Track List?    

Privacy’s Big Three

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.

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.

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.

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.

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.

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]

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:

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 clothes” fable, 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).

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: