Expect the FCC’s partisan arbitrariness to be the downfall of its Title II net neutrality rules in court.
How can there be fair net “neutrality” if a non-neutral, partisan FCC defines, arbitrates and enforces it?
Everyone knows what the word “neutral” means. “Neutral” is not taking sides, not interfering or non-partisanship. By any of these measures, the FCC is not neutral on the issue of net neutrality.
The FCC is not an “independent” agency anymore — it has taken sides. At the behest of President Obama, the FCC is proactively picking market winners (edge providers like Netflix, Google and Amazon) and market losers (ISPs like Verizon, AT&T and Comcast).
And the FCC is preparing to preemptively interfere in the Internet’s core backbone operations for the first time via case-by-case Title II utility price regulation of the Internet.
The FCC also has transformed itself into a partisan political operation in lobbying Congress to ensure that not one congressional Democrat would negotiate with Republicans to achieve a compromised, non-partisan, legislative solution to the net neutrality controversy.
That’s not a neutral FCC.
In a November White House statement and YouTube video, President Obama called for the “strongest possible” utility regulation of the Internet.
In a recent Wall Street Journal investigative piece, “Net Neutrality: How White House Thwarted FCC Chief,” the Journal chronicled a secret White House process that pressured the FCC to toughen its stance on net neutrality.
That article reported an unusual visit to the supposedly “independent” FCC by Jeff Zients, the White House National Economic Council Director, in which Zients informed FCC Chairman Tom Wheeler that the president would publicly urge the FCC to reclassify the Internet as a Title II utility.
Consequently, on Feb. 26, the FCC’s three Democratic commissioners are widely expected to loyally vote to implement “President Obama’s plan for a free and open Internet” in highly partisan 3-2 vote.
The FCC’s politically arbitrary handling of its Title II Internet rulemaking greatly increases the chances that the FCC will be overturned in court — for a third time.
That’s because most all of the FCC’s legal case hinges upon the assumption that the agency will enjoy a powerful legal advantage called “Chevron Deference.”
“Chevron” is a Supreme Court precedent that affords independent administrative agencies substantial latitude when interpreting ambiguous statutes, because an independent agency is assumed to be a neutral and fair adjudicator of the law like a court would be.
However, in this case, the FCC’s naked political process will increase court scrutiny into whether the agency is in fact interpreting the law and administering its rulemaking process in the neutral and fair manner required by judicial due process.
Closer court scrutiny will expose the FCC’s case to not be interpreting an ambiguous statute, but manufacturing an elaborate, Rube Goldberg contrivance to reach a politically arbitrary result that Congress never envisioned or intended in law.
Closer court scrutiny will expose the FCC’s partisan wholesale dismissal of eight consistently bipartisan FCC precedents that rejected common carrier regulation of data services in 1970, 1980, 1986, 1998, 2002, 2004, 2005 and 2007, as not neutral or fair, but politically arbitrary and capricious.
Closer court scrutiny will expose the FCC’s de facto radical redefinition of broadband competition away from how the government previously defined competition, toward a politically convenient and arbitrary contrivance to manufacture evidence of less competition to justify more FCC authority and Title II regulation.
If the courts consider the evidence that the agency is not acting neutrally and fairly like an independent expert agency is assumed to act, the linchpin of the FCC’s whole case — broad Chevron deference from the courts — could disappear.
Without broad Chevron Deference, the FCC could have little chance of succeeding on the merits of its legal case.
Think of the FCC’s Title II legal case like a house of cards built with flimsy partisan legal assertions.
In the end, there can be no fair net “neutrality” if a non-neutral, partisan FCC defines, arbitrates and enforces it via antiquated Title II utility regulation.
Illegitimate inputs yield illegitimate outputs.
Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.