FCC’s Net-Neutrality Order Is Missing One Important Element: Facts

[Note:  This item comes from reader Brett Glass.  DLH]

FCC’s Net-Neutrality Order Is Missing One Important Element: Facts
By Daniel Fisher
Mar 13 2015
<http://www.forbes.com/sites/danielfisher/2015/03/13/fccs-net-neutrality-order-is-missing-one-important-element-facts/>

The Federal Communications Commission has released its long-awaited Open Internet Order, a seemingly simple set of rules designed to insure that consumers get access to the websites they want and businesses get access to consumers.

The inevitable legal attack on the new rules will be simple, too. It can be summed up with two words: What changed? Through 313 dense pages of regulations and explanations, the FCC never explains why it needs to pull a 180-degree shift in how it oversees the Internet, from treating it as an “information service” exempt from utility-style regulation, to a “telecommunications service” falling under the 1934 law written to control telephone monopolies.

“The real question is, will a court defer to the FCCs view of the facts?” said John Beahn, counsel in Skadden’s Washington office focusing on telecommunications law. “There are going to be a lot of billable hours spent on that.”

The rules, as I said, appear simple. The fundamental idea is to guarantee the free flow of bits from so-called edge providers of  information, entertainment and apps through the chokepoints of the Web to consumers, without anybody holding out their hand for a toll along the way. Broadband Internet providers – including wireless carriers – are prohibited from blocking legal websites, throttling back traffic, or charging fees for better access to consumers.

The agency justifies the new rules based on the understanding that the Internet has matured from a technologically complex network of computers crunching data to something more akin to a telephone system transporting information seamlessly to consumers.

“Times and usage patterns have changed and it is clear that broadband providers are offering both consumers and edge providers straightforward transmission capabilities that the Communications Act defines as a `telecommunications service,’” the order says, expressing the views of the three Democratic commissioners who voted for it. “Today, broadband Internet access service is fundamentally understood by customers as a transmission platform through which consumers can access third-party content, applications, and services of their choosing.”

So far, so logical. But does the FCC have the legal authority to make such a sweeping change in how it defines the Internet?

Dissenting FCC Commissioner Ajit Pai answered with a resounding `no’ in his statement. He blamed the change on pressure from the White House, which was dissatisfied with earlier proposals that stopped short of regulating broadband providers as common carriers under Title II of the Telecommunications Act. The President’s Internet team – including Forbes 30 Under 30 member R. David Edelman – saw reclassification of the Internet as the key to getting past unfavorable court decisions striking down the FCC’s previous Open Internet orders. That led Pai to ask: 

Why is the FCC turning its back on Internet freedom? Is it because we now have evidence that the Internet is not open? No. Is it because we have discovered some problem with our prior interpretation of the law? No. We are flip-flopping for one reason and one reason alone. President Obama told us to do so.

The order is dense with rules and exceptions and will be a lobbyist’s dream, as the FCC reserves the power to decide many critical questions on a case-by-case basis. It offers forebearance from more than 700 rules and regulations, including most of the regulations that define the obligations of carriers under Title II. Those include rate regulations and – temporarily at least – required payments into the Universal Service Fund subsidizing access to rural consumers and schools.

[snip]