Tuesday, March 03, 2015

The FCC Power Grab: A Ray of Hope?


Can we beat Title II "Net Neutrality" in the courts? The Heartland Institute's Scott Cleland thinks so:

The FCC's Open Internet Order, which reclassified the commercial Internet as a Title II utility, is very likely (80%) in the end, to be overturned in court -- for a third time.

The FCC's legal theory and many core assumptions are so aggressive, it's clear that the FCC expects, and needs, continual and maximal deference from the court to prevail. The FCC also requires the courts to view the FCC's most aggressive assertion of unbounded authority ever, as a mere administrative interpretation of ambiguous law, and not a political bypass of Congress and the 1996 Telecom Act.

The FCC's case also has so many serious conceptually inter-dependent flaws that it is like a fragile house-of-cards, built of flimsy definitional, precedential, and factual assumptions. This means opponents only need to knock down one of the FCC's supporting 'cards' for the entire house of cards to collapse. In contrast, the FCC needs every card in its house of cards to withstand scrutiny and remain standing.

Simply the FCC's case is politically strong, but legally weak.

Read all about it here.

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