CBIT Statement on Oral Arguments in Net Neutrality Case
Haymarket, VA, December 3, 2015 – Fred Campbell, Director of the Center for Boundless Innovation in Technology, released the following statement with respect to the oral arguments on net neutrality that will take place on December 4, 2015, before the Court of Appeals for the D.C. Circuit:
“I expect the FCC will struggle during its court defense of its new net neutrality rules. It’s impossible to square prior court decisions with the unprecedented FCC power grab in the open Internet order under review.
In the previous net neutrality case, the court said it ‘might well hesitate to conclude that Congress intended to grant the Commission’ authority to regulate the Internet with ‘no limiting principle.’ Yet there is no discernible ‘limiting principle’ on the FCC’s interpretation of Title II for the Internet.
The D.C. Circuit court has held that the public interest standard in Title II is ‘essentially one of reasonableness’ with respect to business practices, not absolutes. But the FCC’s new net neutrality rules impose an absolute ban on the business management of ISP networks. According to the FCC’s new net neutrality rules, it is never reasonable for an ISP to manage their networks for ‘business’ reasons. There is no basis in the statute for that sort of hard line.
Even if the FCC wins its statutory arguments, it will very likely lose on constitutional grounds. The law is clear that those who disseminate mass media content have a First Amendment right to exercise the freedom of the press, yet the FCC’s net neutrality rules prohibit any attempt by ISPs to exercise that right. Given that the Supreme Court has never upheld an absolute ban on the exercise of a First Amendment right, it’s highly unlikely that the D.C. Circuit will uphold the FCC’s net neutrality rules.”