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

My NPR Online op-ed: "Net Neutrality Regulations Compromise Freedoms" makes the case why the FCC Chairman's proposed net neutrality regulations are likely unconstitutional in multiple dimensions. 

If you like the op-ed please click on the "Recommend" check button above the title or at the end of the piece, that is in the link below, because that will keep the op-ed posted longer than otherwise.

My proposed title, which was supplanted for space concerns, was: "Taking Freedom From Some Takes Freedom From All."

  • Below is the text of my NPR Online op-ed.


"Net Neutrality Regulations Compromise Freedoms

September 29, 2009

Be suspicious when anyone argues that the government must take away the freedoms of a few to "preserve" the freedoms of the many. This is true of a slogan-driven issue that most Americans have never heard of, called "net neutrality" or an "open Internet". It's about whether government should forbid broadband companies from prioritizing Internet traffic, because that potentially could limit consumers' access to the content or applications of their choice. In an innocuous-sounding speech entitled "Preserving a Free and Open Internet," the new FCC Chairman proposed new regulations for all broadband providers to prevent this potentiality.

Our founding fathers understood that it is government that takes away people's freedoms, not individuals or companies. The proposed FCC regulations assault our constitution in at least four ways:

First, they offend due process. The FCC proposes to take away the freedom of enterprise from about 2,000 companies, because of only two problematic incidents over several years. Imposing an extremely restrictive industry-wide "solution" in the absence of a proven industry problem is like being found guilty until proven innocent.

Second, they offend equal protection under the law. While the FCC previously urged all Internet-related companies to voluntarily comply with its policy statement, the FCC now proposes to selectively and unfairly apply the rules to only some Internet distributors and not to all. This selective regulation approach would have the perverse effect of punishing competitive broadband companies that the FCC admits have done nothing wrong yet, to advantage application "netopolies," like Google and eBay, because the FCC believes they can innovate better in the future.

Third, the regulations offend the constitution's protection of property. The FCC's position that users have an absolute freedom to access the content and applications of their choice, with no regard to the rights of others, is extreme given that net neutrality freedoms are found nowhere in the constitution or law. Surely, a newly proposed FCC net neutrality freedom does not trump two-century-old property-right protections that allow property owners to require permission and payment for the use of their property. Surely the FCC does not have the authority to effectively transform the current Internet free market into an information commons where competitive property owners would have no rights to set the terms of use of their property or get fairly compensated for their products and services.

Fourth, they offend freedom of speech. Like it or not, the Supreme Court has affirmed that corporations have constitutionally protected free speech. The FCC proposed ban would perversely conclude that to protect the free speech of Internet users, who have many outlets of free speech, the FCC must ban the free speech rights of corporations.

At the core, the FCC's proposed preemptive "net neutrality" regulations to preserve an "open Internet" are not at all about promoting freedom but exactly the opposite. Freedom is not a zero sum game where taking it away from some gives more to others. Taking away freedoms of some takes away freedom from all."