You can't innovate when you have to litigate

[Commentary] The Open Internet Order appeals process has already begun and, given the remarkable legal and factual gymnastics employed by the Federal Communications Commission to support its decision, the potential for a reversal and/or remand is high. While any lawyer will tell you that there is no way to make an accurate prognostication about the ultimate outcome of the litigation, we are likely to see the appellate arguments proceed along the following sequence:

The threshold legal question will not be on substance, but rather on procedure. Assuming arguendo that the FCC's order survives this procedural challenge, the next legal question is whether the FCC articulated a sufficient rationale for changing its longstanding policy of a light-touch approach to regulating broadband Internet access -- an approach the Supreme Court has reviewed and validated. But these challenges are not the end of the inquiry. The reviewing court will next have to evaluate whether the FCC's application of Ma Bell Title II common carrier regulations to the Internet make any sense.

Given the multitude of issues raised by the FCC's decision to reclassify, the potential legal problems are endless. Given the scope of the agency's rules, I have only scratched the surface of potential legal problems with the FCC's order. However, one thing is clear: We can now look forward to years of protracted litigation, no doubt ultimately ending up in the Supreme Court. Such legal wrangling will bring great uncertainty to both the provision and use of Internet services, slowing both deployment of and innovation on the Internet. In its most recent order, the FCC has demonstrated, once again, that it has no answers to what is the proper role of government on the Internet. It's time for Congress to step in and provide the FCC clear guidance on how, and if, the Internet is to be regulated.

[Lawrence Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]