Congress

While proposing to follow the D.C. Circuit Court’s roadmap in Verizon v. FCC to create a legal FCC regulatory framework for the Internet Age under the FCC’s 706 authorities, the FCC also invited proposals to potentially subject broadband to Title II common carrier utility regulation.

The FCC’s invitation has prompted a “rainbow of policy and legal proposals” that would explore “new ideas for protecting and promoting the open Internet” by imposing Title II telecommunications regulation on America’s Internet infrastructure.

The FTC implicitly laid down an important jurisdictional, political, and public marker against FCC reclassification of broadband as a utility, in its recent FCC filing in the FCC’s Section 706 inquiry proceeding.

Respectfully outside of the Open Internet proceeding considering whether to reclassify broadband information services as a Title II common carrier (utility) telecommunication service, the FTC officially and deftly introduced key legal facts into the overall FCC record – that deftly have the practical and legal effect of opposing FCC reclassification of broadband Internet access service as a Title II common carrier – on the record.

Please see my latest Daily Caller op-ed: “The Forgotten Consumer in the Fast Lane Net Neutrality Debate” – here.

• It explains how the whole “no fast lane” argument is misdirection that serves Silicon Valley’s interests at the expense of what’s best for empowering consumers.
• It is Part 64 in my FCC Open Internet Order Series.

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FCC Open Internet Order Series

Please read my Daily Caller op-ed: “De-competition De-competition De-competition” here.

• De-competition is regulation that undermines competition in order to justify more regulation.

As one can see from the “de-competition” series below, this isn’t the first time the FCC has turned to de-competition policy.

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FCC De-Competition Series

Part 1:Harms of a Potential New FCC De-Competition Policy – Reply Comments to FCC Open Internet NPRM [4-5-10]

FCC Open Internet Order Remand Request for Comments (GN Docket No. 14-28) Submitted by: Scott Cleland, Chairman of NetCompetition, September 9, 2014

The case against the FCC regulating broadband as a telephone utility is overwhelming. Please see eight strong arguments against FCC Title II reclassification of broadband below.

The Summary Case against FCC Title II Reclassification of Broadband

1. The FCC rejected Title II reclassification in 2010 for many good reasons.

2. Broadband info services classification is consistent with law, national policy, and FCC precedent.

What is the FCC’s definition of “competition?” That is the defining question and take-away from FCC Chairman Wheeler’s latest broadband speech, “The Facts and Future of Broadband Competition.”  

Tellingly the Chairman said: “Since my first day as Chairman of the FCC my mantra has been consistent and concise: Competition, Competition, Competition.” Well then, it seems especially important to understand exactly what the FCC Chairman means when he says the FCC is singularly focused on “Competition.”  

Via their Congresswoman, Silicon Valley is trying to redefine net neutrality for their benefit under the benign guise of “rebranding.”

Their desired re-definition is that net neutrality now should be the principle that “all bits are created equal.”

This is an unreasonable utopian escalation of the net neutrality debate. An “all bits are created equal” or “bit equality” principle would be a radical departure from the current decade-old “network neutrality” principle that the American Internet has long operated under.

Everyone knows that “neutrality” and “equality” are not synonyms and are not honestly used as interchangeable concepts in conversation, policy discourse, branding, or the law.

There are two core reasons the FCC should not try to preempt State muni-broadband laws.

1. The Supreme Court has already indicated it would be unconstitutional.  
2. It would be anti-competitive, the opposite of the FCC’s statutory purpose and legal mandate.

I.  Why FCC Preemption of States Rights would be Unconstitutional

First, the Supreme Court already has decided this issue effectively in favor of state rights. In Nixon v. Missouri Municipal League (2004) the Supreme Court rejected federal preemption of state prohibitions on telecom services. It specifically rejected the use of the FCC’s Title II section 253(a) authority to preempt state prohibitions of localities offering telecom services on constitutional federalism grounds.

The old adage is true here; “if it ain’t broke don’t fix it.”

The Internet peering marketplace works exceptionally well and it has for its entire twenty year history. The unparalleled success, growth, and resiliency of the unregulated model for the Internet backbone peering marketplace has been nothing short of phenomenal in enabling and ensuring everyone reasonable access to the Internet.

Inter-networked computer networks are effectively the opposite of railroad, electricity, and telephone networks; trying to impose telephone interconnection rules on IP inter-networking is akin to forcing a square peg into a round hole. It predictably breaks both the peg and the hole.

Please see NetCompetition’s House CommActUpdate submission on interconnection -- here. (3 pages)

The Daily Record reports that the Maryland Public Service Commission ruled that Uber is a common carrier subject to its regulatory jurisdiction.  

The PSC stated: “[W]hen viewed in their totality, the undisputed facts and circumstances in this case make it clear that Uber is engaged in the public transportation of persons for hire. Thus, Uber is a common carrier and a public service company over whom the Commission has jurisdiction…”

In 60 days, PSC will draft “new regulations that protect the public interest,but also reflect the evolving nature of transportation services like Uber.”

Uber has threatened to leave the state if Uber is treated the same as their regulated taxi and transportation-for-hire competitors are under Maryland law.

Relevance to FCC Open Internet Order