FCC net neutrality rules take effect, experts doubt longevity

The Federal Communications Commission’s “Open Internet” rules — also known as net neutrality — took effect Sunday, after a year-long battle in Congress. Some market-based technology experts, however, have expressed doubt that the rules will be upheld when the case comes before the federal appellate court in 2012.

Supporters of net neutrality argue that Internet service providers should not be allowed to exercise preferential treatment of data in the management of their network traffic because that is a threat to free speech. Opponents of the FCC’s net neutrality rules contend that the FCC lacks the proper authority to regulate the Internet, and that the rules are a threat to the innovation and economic growth it has experienced.

Friday, three free market technology experts explained to Media Freedom, a market-based tech policy organization, their doubts over the longevity of the FCC’s rules.

“I do believe it is likely that the FCC’s action will be overturned in the [Washington,] D.C. circuit,” said Randolph May, president of Free State Foundation. May said that the FCC “exceeded its statutory jurisdiction,” and that the legal arguments the agency made during a similar case in 2010, involving Internet service provider Comcast, were rejected by the same D.C. court set to hear the new case.

“The court is gonna see that the FCC is doing a huge overreach,” said Scott Cleland, president of NetCompetition. “The logic that the FCC has would basically allow it to regulate anything with an Internet chip in it. It could be a washing machine, it could be anything.”

The FCC is trying to regulate through the “Open Internet” rules Cleland said, but the FCC misinterpreted the law it claims gives them the authority to do so.

“It’s going to be quite clear to the court that they don’t have existing authority,” Cleland added, “and when they try and bootstrap it with the authority they describe right now, I think the court is gonna chuckle and say, ‘Nice try, but no way!’”

Ryan Radia, associate director of technology studies at Competitive Enterprise Institute, echoed that sentiment.

“If this rule goes through, if the notion of ‘the FCC can do whatever it wants to do and as long as it has some nexus to the broadband world, it’s okay,’” Radia said, “that really puts no meaningful constraints on the agency’s authority, which is incredibly troubling to really anyone who cares about the rule of law, whether you come at this from the standpoint of someone on the left, or the right, or from a libertarian perspective.”

In early November, the Senate voted to block a Republican-led resolution that would have allowed a vote to overturn the FCC’s rules to regulate the Internet. The White House promised to veto the measure if it made it past the Senate.

Democratic Sen. John Kerry argued in both a “dear colleague” letter and on the Senate floor the day before the vote that the FCC did possess the legal authority to regulate the Internet.

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