Net Neutrality Proponents are Hearing Footsteps

June 30, 2011

Four recent developments signal that net neutrality proponents of the FCC’s December Open Internet Order are hearing footsteps and looking over their shoulder, increasingly concerned about the ultimate legal and political survivability of the net neutrality regulations/order.

First, professor Susan Crawford, one of the most ardent proponents of net neutrality rules and Title II reclassification, penned a telling and surprisingly candid analysis of how the Supreme Court’s recent decision to overturn a California ban on the sale/rental of violent video games to minors, on First Amendment free speech grounds, very likely helps broadband providers’ free speech argument to overturn the FCC’s net neutrality rules.

  • Professor Crawford concludes: “Today’s news is that the absolutist approach of the current Supreme Court to protection of speakers of all kinds — including distributors of speech — signals that the carriers will be likely to find a sympathetic ear there.

The irony here is that a net neutrality proponent thought leader is implicitly acknowledging that the main slogan of FreePress/Save The Internet and others — that “net neutrality is the First Amendment of the Internet” — is a totally bogus.

  • The Supreme Court affirms that the First Amendment protects people (and incorporated entities which are legally “people”), from Governmentinfringing on people’s Constitutional right to free speech.
  • FreePress perverted the concept of the First Amendment by claiming Government should regulate broadband providers to protect citizens’ speech from companies’infringement.
  • Now Professor Crawford is unwittingly spotlighting how utterly bogus it is to assert net neutrality is somehow the “First Amendment” of the Internet.

Second, the FCC has said it will permanently delete the practically-defunct-but-still-on-the-books “Fairness Doctrine” for broadcasting, from the Code of Federal Regulations, as early as this summer. 

  • The Administration and the FCC are obviously aware of, and sensitive to, the charge that there is way too much regulation of business when the economy is so sluggish and not creating enough jobs.
  • This is a tacit admission that the FCC’s Open Internet Order is very unpopular and this appears to be an attempt to throw a bone to Hill critics of the FCC and the Open Internet Order. 

Third, the House voted to defund FCC implementation and enforcement of the FCC’s net neutrality regulations in the Open Internet Order, and some Senators are scrambling to try and head off the Senate from following suit.

Fourth, the FCC has finally, after six months of counting, recounting, and recounting again, the paperwork burden hours of the FCC order, has sent its Open Internet order to OMB for review, which creates a rough process of review that will likely result in the order being published in the Federal Register in the September-October timeframe. 

  • When the rules are published in the Federal Register, the companies then finally can sue to over turn the order and the Senate can start the process of voting on a Resolution of Disapproval — a process that under the rules cannot be filibustered.
  • Releasing the rules appears to be a recognition by the FCC that it cannot plausibly stall the release of the order any longer and that the process must be allowed to run its statutory and Constitutional course.
  • My analysis is that the order will be overturned (see analysis here) because the FCC does not have direct statutory authority to justify the overreach. Thus the courts will probably never have to get to the legitimate and strong First Amendment argument.
    • My view is bolstered by the FCC’s tactical mistakein releasing the Data Roaming order, which is on even shakier legal ground first, so that it gets legally challenged and decided before the Open Internet order.
    • With two reinforcing decisions that the FCC does not have the direct statutory authority to economically regulate broadband information services — Comcast vs. FCC and the data roaming order — it will be very hard for the next court to not to follow double precedent and overturn the FCC’s open Internet order.
  • The FCC’s delaying tactic also moved the Senate Resolution of Disapproval six months closer to the election making it harder politically for Senators in tough reelection races to publicly support questionable Internet regulation that hurts growth and jobs, given that the President can always veto it, and given the political outcome in the 2010 midterms when ALL 95 publicly-pledged supporters of net neutrality lost in their bid for election. 

In sum, the clear trend here is that the FCC’s Open Internet Order has gotten more unpopular over time. Unnecessary, unwarranted, unjustified regulation in a sluggish economy that is not producing enough jobs is getting increasingly difficult for net neutrality proponents to support.

  • In a word, promoting net neutrality and the FCC’s Open Intenet order is a legal and political loser.
 
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