TechFreedom: Net Neutrality a Red Herring

The Federal Communications Commission assertion of common carrier authority over Internet service is a statutory construction train wreck, TechFreedom suggests, with at least three strikes against it:

1. The FCC presumes that Congress delegated to the FCC "unilaterally" the decision on a question of "utmost" political and economic significance, despite express statutory authority and "subsequent legislative history" signaling Congress did not intend for the FCC to regulate the Internet period, much less under Title II regulations written for a 19th century railroad network.
2. The FCC's reinterpretation of statute required it to extensively forbear from Title II regulations, which the brief points out the FCC calls tailoring and the brief suggests is a clear sign the FCC took the "wrong interpretive turn."
3. By claiming the regulatory power without demonstrating the necessity to prevent significant and actual risks to the public, the FCC is asserting the kind of sweeping delegation of power the Supreme Court has told agencies to avoid.

And even if the statutory language were "merely" ambiguous, TechFreedom et al. argue that the court should not accord the FCC Chevron deference (the legal theory of deferring to an agency that has subject matter expertise when it comes to statutory interpretation where the statute is not clear).