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Restoring Internet Freedom

Randolph J. May May 10, 2017
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You’ve probably noticed – or likely soon will – that the latest phase of the more than a decade-long fight over “net neutrality” regulations has begun at the Federal Communications Commission. FCC Chairman Ajit Pai has released the text of a Notice of Proposed Rulemaking that the Commission on which the Commission vote on May 18.

The Commission says its NPRM proposes “to restore the Internet to a light-touch regulatory framework by classifying broadband Internet access service as an information service and by seeking comment on the existing rules governing Internet service providers’ practices.”

The agency’s Notice raises several important communications law and administrative law issues, including the role of Chevron deference. After all, in essence, the Trump Administration FCC is proposing, based on its interpretation of key Communications Act provisions, to curtail substantially the rules adopted in 2015 by the Obama Administration FCC based essentially on those same statutory provisions. Oh, by the way, the FCC’s 2015 net neutrality decision reversed the statutory interpretation of those same Communications Act provisions adopted by the FCC almost fifteen years ago and affirmed by the Supreme Court in 2005 in the landmark Brand X decision.

Chevron deference has played a major role in all the litigation thus far that followed each of the FCC’s decision, and it is very unlikely that will change if and when the Commission ultimately acts in the proceeding it is initiating with the new NPRM.

Of course, aside from the legal issues, fundamental policy issues involving the role of the government in regulating Internet providers are at stake as well. They impact consumer welfare and the nation’s economy.

Here is the beginning of “Restoring Internet Freedom,” my Washington Times op-ed, published on May 2, welcoming the initiation of the new FCC proceeding:

“Thankfully, on April 26, Federal Communications Commission Chairman Ajit Pai formally announced a proposal to curtail the overweening internet regulation regime adopted in February 2015 under the leadership of his predecessor, Tom Wheeler. The Obama administration’s FCC’s rules went overboard in restricting the freedom of internet service providers to innovate and to invest in extending and modernizing their high-speed broadband networks.

Consumers, of course, were the real losers.

At bottom, running under the guise of ensuring ‘net neutrality,’ in order to assert much greater government control over internet providers, the FCC reversed the previous light-touch internet regulatory regime that generally had prevailed since the Clinton administration.

And worst of all, the FCC did this while conceding there was no real evidence of a market failure justifying heavy-handed government intervention. Rather, the FCC’s internet power grab was based on reams of rhetorical conjecture about ‘possible’ harms that ‘might’ occur in the future if internet service providers adopted practices that possibly ‘could’ harm consumers or competitors.”

For the entire commentary, please click here.

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