Obamanet Heads to Court

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[Commentary] A federal appeals court has twice invalidated attempts by Washington bureaucrats to regulate the Internet. The Federal Communications Commission deserves a third-time strikeout in December when the US Circuit Court of Appeals for the District of Columbia considers the agency’s latest power grab. At stake is whether the Internet remains safe for permissionless innovation—so that anyone can launch a website, app or new business model—or regulators get to set rates and decide the “reasonableness” of business practices.

Legal briefs filed by broadband providers, wireless companies and free-market advocates identify numerous other legal problems, any of which should invalidate Obamanet:

  • Reclassifying the Internet as a regulated utility, giving the FCC the power to decide what is “fair” and “reasonable,” violates the express terms of the Telecommunications Act.
  • The agency’s new “Internet conduct standard,” which creates open-ended regulation, exceeds the agency’s authority.
  • Obama’s last-minute insistence on utility regulation violated the notice period required by the Administrative Procedures Act.
  • The agency’s claimed discretion, which could apply the broadcast era’s Fairness Doctrine to broadband, violates the First Amendment’s guarantee of free speech.
  • Blanket bans on “fast lanes” exceed the broadest regulatory discretion under utility laws.

Obamanet Heads to Court