Capricious Net Neutrality Charges Part 32, FCC Open Internet Order Series

Published August 8, 2013

Net neutrality is in the eye of the beholder.

It’s rapidly devolved into a gotcha game — where if someone doesn’t like something or someone, they cry “net neutrality violation!” and call for an FCC investigation — under the FCC’s self-asserted, all-powerful Open Internet order.  

Senators and Representatives are now writing the FCC urging it to investigate for an alleged net neutrality violation over a contract dispute over how much Time Warner Cable pays for retransmitting CBS programming. The FCC could have a role in this retransmission dispute under obsolete 1992 law, but not legitimately under the FCC’s Open Internet order.

The fact that U.S. senators and representatives imagine that a billing dispute among companies could be considered a net neutrality violation illustrates how arbitrary and capricious net neutrality politics and the FCC’s Open Internet order have become.

Apparently there is no objective, reasonable or predictable standard of what net neutrality is or what a violation of “it” is. That net neutrality has transmogrified into a political-catch-all for anything affecting consumers is powerful proof of how capriciously this issue has been abused.

Why has net neutrality become so capricious?

The answer is simple. The FCC’s process and thinking in implementing net neutrality has been capricious.

The FCC passed a controversial Open Internet order 3-2 that asserted unlimited power over the Internet without statutory authority to do so. Verizon is specifically challenging the order in Verizon v. FCC for being arbitrary and capricious, for not having statutory authority, and for violating Verizon’s First and Fifth Amendment rights under the Constitution.

Even ardent supporters of the FCC’s Open Internet order expect it to be overturned by the Appeals court in Verizon v. FCC because the FCC lacks statutory authority.

Let’s consider the many capricious elements of net neutrality and the FCC Open Internet order.

First, the FCC could not describe a problem that warranted regulation to solve.

Second, the FCC could not provide evidence of a problem warranting prophylactic pricing bans and regulation.   

Third, the term “net neutrality” cannot be found in law.

Fourth, the core purpose of the FCC’s Open Internet order — “preserving openness” — does not come from Congress or the law, but was wholly made up by the FCC, meaning that the FCC effectively is trying to bypass Congress and the Constitution and effectively legislate all by itself.

Fifth, the FCC assertions of statutory and ancillary authority would make Rube Goldberg proud. The most capricious assertion the FCC makes to justify its power grab is that the Court should ignore that the Section 706 authority they assert was obviously intended by Congress to be de-regulatory authority in a de-regulatory act, not a sweeping font of unlimited legislative authority to regulate as the FCC determines as time passes. Adding capricious icing to this capricious cake, the Kennard FCC already determined in the late 1990’s that Section 706 was not a grant of new statutory authority.  

Finally, the FCC’s order arbitrarily and capriciously claims that its sweeping assertion of unbounded authority will only be applied to part of the Internet ecosystem that it alone will determine. Adding capricious sprinkles to the order’s capricious icing and cake, the FCC does not justify why potential anti-competitive behavior in one part of the Internet ecosystem is a problem requiring preemptive price regulation when potential anti-competitive behavior elsewhere does not.  

In sum, these public officials vast over-reach — in claiming that companies with websites have no right to determine the price and terms for their goods and services in a competitive marketplace – have unwittingly made the case for the arbitrariness and capriciousness of the FCC Open Internet order — only weeks before the U.S. Court of Appeals hears oral arguments on it in early September.

If I were the FCC, I would not want to have to answer pointed questions from the Appeals Court about why the FCC drew the net neutrality line where they did and not elsewhere because the answers are capriciousness.