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MEDIA ADVISORY September 9, 2013
Contact: Randolph May at 202-285-9926 or 301-984-8253
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FSF's Randolph May Reacts to the Net Neutrality Oral Argument
Free State Foundation President Randolph May issued the following statement concerning today's oral argument before the D.C. Circuit in connection with Verizon's challenge of the FCC's net neutrality rules:
"After witnessing this morning's oral argument, I certainly would not say it is a 'slam dunk' for either side. But with the usual caveat that predictions based on oral arguments can be hazardous, my sense is that Verizon is more likely than not to win on important aspects of its appeal.
First, the court seemed to agree with Verizon -- and this is a point that I have also made repeatedly and for years -- that the FCC's rules, as a practical matter, amount to converting Verizon's Internet access service into a common carrier service and that this is prohibited by the Communications Act. Or put another way, the FCC lacks authority to impose a common carriage mandate on Internet providers.
Second, the fact that the FCC failed affirmatively to claim that Verizon posseses market power seemed likely to adversely affect the FCC's chances of prevailing, along with the related point that the agency casts the potential harms from absence of a net neutrality rule in speculative terms.
Finally, it was not evident that the judges were inclined to give the Commission Chevron deference on the points that were of most concern to the court, especially the question whether the net neutrality mandates, in effect, amount to a common carriage requirement not authorized by the Communications Act."
Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a public member of the Administrative Conference of the United States, and a Fellow of the National Academy of Public Administration.
Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 150 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the editor of the new book, Communications Law and Policy in the Digital Age: The Next Five Years. He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform, and he is the editor of the book, New Directions in Communications Policy. He is co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? and Communications Deregulation and FCC Reform.
The Free State Foundation is a non-profit, independent free market-oriented think tank. * * *
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Tel: 301-984-8253
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www.freestatefoundation.org
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