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PRESS RELEASE March 12, 2015
Contact: Randolph J. May at 202-285-9926 or 301-984-8253
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The FCC Puts the Internet in the Utility Regulation Straight-Jacket
The Agency's Action Must Be Reversed
ROCKVILLE, MD - March 12, 2015
Randolph May, President of the Free State Foundation, issued the following statement in response to the FCC's release of its Internet Regulation order classifying Internet Service Providers as public utilities:
"Now that I have reviewed -- admittedly, quickly -- the FCC's order, I want to repeat first off what I have said before: In the nearly forty years that I have been heavily involved in communications law and policy, including serving for a time as FCC Associate General Counsel, this is certainly one of the most momentous decisions of the agency - and, undoubtedly, one of the most misguided ones.
There is so much to say about the FCC's order that I'm sure I will be coming back to address it for months to come. But, for now, I want to highlight these crucial points.
It is certain that the FCC's approach will lead to ongoing legal uncertainty. In addition to what the agency calls its 'bright line' prohibitions, the agency adopts a general conduct rule that prohibits Internet providers from engaging in 'unreasonable interfering' or 'unreasonably disadvantaging' others. Obviously, these terms are so standardless that the Commission can exercise discretion arbitrarily to favor one company or market segment or another. This will lead to an ongoing exercise of power akin to the 'dispensing power' exercised by the kings of England using the royal prerogative. An administrative agency should not be permitted to exercise such standardless discretion over the Internet as it continues to evolve to meeting changing consumer demand.See my much discussed essay: "Is the FCC Lawless?" published in The Hill.
Contrary to claims made by the FCC using misleading technical terminology, application of Title II will result in rate regulation under the ordinary usage of the English language. When the FCC bans paid prioritization, adjudicates interconnection disputes, modifies sponsored data and zero-rating plans, reviews usage tiers, it is engaging in rate regulation of Internet serivces under the guise of regulating 'practices.'
And, a prediction: In light of President Obama's intervention in this proceeding specifically urging the FCC to adopt Title II regulation -- and then the Democrat majority's quickly falling into line despite initially proposing a different approach -- the Commission's order will receive less deference upon judicial review than the usual Chevron deference." * * *
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 at 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 and 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.
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The Free State Foundation
P. O. Box 60680
Potomac, MD 20859
Tel: 301-984-8253
Fax: 301-299-5007
www.freestatefoundation.org
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