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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 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?

The answer is simple. The FCC’s process and thinking in implementing net neutrality has been capricious.

The FCC passed a controversial Open Internet order 3-2 that asserted unlimited power over the Internet without statutory authority to do so. Verizon is specifically challenging the order in Verizon v. FCC for being arbitrary and capricious, for not having statutory authority, and for violating Verizon’s First and Fifth Amendment rights under the Constitution.

Even ardent supporters of the FCC’s Open Internet order expect it to be overturned by the Appeals court in Verizon v. FCC because the FCC lacks statutory authority.

Let’s consider the many capricious elements of net neutrality and the FCC Open Internet order.

First, the FCC could not describe a problem that warranted regulation to solve.

Second, the FCC could not provide evidence of a problem warranting prophylactic pricing bans and regulation.   

Third, the term “net neutrality” cannot be found in law.

Fourth, the core purpose of the FCC’s Open Internet order -- “preserving openness” -- does not come from Congress or the law, but was wholly made up by the FCC, meaning that the FCC effectively is trying to bypass Congress and the Constitution and effectively legislate all by itself.

Fifth, the FCC assertions of statutory and ancillary authority would make Rube Goldberg proud. The most capricious assertion the FCC makes to justify its power grab is that the Court should ignore that the Section 706 authority they assert was obviously intended by Congress to be de-regulatory authority in a de-regulatory act, not a sweeping font of unlimited legislative authority to regulate as the FCC determines as time passes. Adding capricious icing to this capricious cake, the Kennard FCC already determined in the late 1990’s that Section 706 was not a grant of new statutory authority.  

Finally, the FCC’s order arbitrarily and capriciously claims that its sweeping assertion of unbounded authority will only be applied to part of the Internet ecosystem that it alone will determine. Adding capricious sprinkles to the order’s capricious icing and cake, the FCC does not justify why potential anti-competitive behavior in one part of the Internet ecosystem is a problem requiring preemptive price regulation when potential anti-competitive behavior elsewhere does not.  

In sum, these public officials vast over-reach -- in claiming that companies with websites have no right to determine the price and terms for their goods and services in a competitive marketplace – have unwittingly made the case for the arbitrariness and capriciousness of the FCC Open Internet order -- only weeks before the U.S. Court of Appeals hears oral arguments on it in early September.

If I were the FCC, I would not want to have to answer pointed questions from the Appeals Court about why the FCC drew the net neutrality line where they did and not elsewhere because the answers are capriciousness.     

FCC Open Internet Order Research Series

Part 1:

The Many Vulnerabilities of an Open Internet

Part 2:

Why FCC net neutrality regs are unconstitutional; See my NPR Online op-ed

Part 3:

Takeaways from FCC's Proposed Open Internet Regs

Part 4:

How FCC Regulation Would Change the Internet

Part 5:

Is FCC Declaring 'Open Season' on Internet Freedom?

Part 6:

Critical Gaps in FCC’s Proposed Open Internet Regulations

Part 7:

Takeaways from the FCC's Open Internet Further Inquiry

Part 8:

An FCC "Data-Driven" Double Standard?

Part 9:

Election Takeaways for the FCC

Part 10:

Irony of Little Openness in FCC Open Internet Reg-making

Part 11:

FCC Regulating Internet to Prevent Companies from Regulating Internet?

Part 12:

Where is the FCC's Legitimacy?

Part 13:

Will FCC Preserve or Change the Internet?

Part 14:

FCC Internet Price Regulation & Micro-management?

Part 15:

FCC Open Internet Decision Take-aways

Part 16:

FCC Defines Broadband Service as "BIAS"-ed

Part 17:

Why FCC's Net Regs Need Administration/Congressional Regulatory Review

Part 18:

Welcome to the FCC-Centric Internet

Part 19:

FCC's Net Regs in Conflict with President's Pledges

Part 20:

Test Case: Will FCC Respect President's Call for "Least Burdensome" Regulation?

Part 21:

FCC's In Search of Relevance in 706 Report

Part 22:

The FCC's public wireless network blocks lawful Internet traffic

Part 23:

Why FCC Net Neutrality Regs Are So Vulnerable

Part 24:

Why Verizon Wins Appeal of FCC's Net Regs

Part 25:

Supreme Court likely to leash FCC to the law

Part 26:

Part 27:

Part 28:

Part 29:

Part 30:

Part 31:

What Court Data Roaming Decision Means for FCC Open Internet Order

Oops! Prof. Crawford’s Model Broadband Nation, Korea, Opposes Net Neutrality

Little Impact on FCC Open Internet Order Appeal from SCOTUS Chevron Decision

More Legal Trouble for the FCC Open Internet Order & Net Neutrality

U.S. Competition Beats EU Regulation in Broadband Race

Defending Google Fiber’s Reasonable Network Management