The FCC Built its Net Neutrality House on Legal Sand

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.

The D.C. Court of Appeals has twice ruled (in 2010 & in 2014) that the FCC does not have the legal authority to mandate FCC-defined net neutrality. This third FCC attempt suffers from many of the legal infirmities of the previous two FCC failures, plus additional, more serious legal infirmities than before.

The linchpin weakness of this FCC case is the FCC’s political premise that it enjoys the sweeping legal latitude to apply Title II common carrier regulation to whomever it wants, whenever it wants, in whatever selective way it wants, without regard to the law or settled court precedents.

Given the opportunity to assert Title II authority over the Internet, three different FCC Chairman decided not to assert it. Chairman Kennard didn’t in 1998; Chairman Martin didn’t in 2008; and Chairman Genachowski didn’t in 2010. Even present FCC Chairman Wheeler on 2-19-15 didn’t originally propose to the full FCC to assert Title II to enforce net neutrality.

The Obama FCC’s partisan Title II regulation of the Internet is a policy U-turn of President Clinton’s bipartisan “light touch” Internet policy and effectively an FCC administrative veto of Congress’ near unanimous Internet policy statement in section 230 of the 1996 Telecommunications Act, which clearly states: “It is the policy of the United States… to preserve the… competitive free market… Internet… unfettered by Federal or State regulation.”

The FCC is asking the court to interpret the Supreme Court’s 2005 Brand X decision that affirmed the FCC’s decision to not apply common carrier regulation to cable, also as authority to impose common carrier regulation on cable/ISPs now -- when the facts and the relevant parts of the statute in question are not interchangeable.

The FCC is asking the court for near carte blanche deference to do an unprecedented, huge double-whipsaw. First allowing the FCC to reverse settled precedents opposing common carrier regulation of data/info services, while second simultaneously reversing much of the reversal for ISPs and all of it for similarly situated edge services.

In addition, the FCC is effectively asking the courts to allow three unelected commissioners of an administrative agency to usurp Congress’ constitutional legislative authority.

Finally, no court has ever found legal what the FCC is mandating in its no paid prioritization rule, i.e. a permanent price of zero for all Internet downstream traffic. That is because settled precedent has never found it reasonable to compel a service offering with no recovery of cost.

In short, the FCC Title II net neutrality legal case is much less a legal fortress built to last on the rock of facts, precedent, direct statutory authority, and constitutional due process principles, and much more a legal sandcastle built on the shifting sands of mob rule, political expediency, and wishful groupthink.