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ICLE, Leading Academics File Amicus Brief Urging the Court to Overturn the FCC’s Illegal Net Neutrality Order PDF Print E-mail

Yesterday, the International Center for Law & Economics, together with Professor Gus Hurwitz, Nebraska College of Law, and nine other scholars of law and economics, filed an amicus brief in the DC Circuit explaining why the court should vacate the FCC’s 2015 Open Internet Order.

“If the 2010 Order was a limited incursion into neighboring territory, the 2015 Order represents the outright colonization of a foreign land, extending FCC control over the Internet far beyond what the Telecommunications Act authorizes." said Geoffrey Manne, Executive Director of the International Center for Law & Economics. “The Commission asserts vast powers — powers that Congress never gave it — not just over broadband but also over the very ‘edge’ providers it claims to be protecting. The court should be very skeptical of the FCC’s claims to pervasive powers over the Internet.”

“Last year, the Supreme Court blocked a similar attempt by the EPA to ‘modernize’ old legislation in a way that gave it expansive new powers,” said Gus Hurwitz, Assistant Professor of Law, Nebraska College of Law. “In its landmark UARG decision, the Court made clear that it won’t allow regulatory agencies to rewrite legislation in an effort to retrofit their statutes to their preferred regulatory regimes. But that’s exactly what the FCC did here: Invoking Title II, admitting that it was unworkable for the Internet, and then trying to ‘tailor’ the statute to avoid its worst excesses. That the FCC felt the need for such sweeping forbearance should have indicated to it that it had ‘taken an interpretive wrong turn’ in understanding the statute Congress gave it.”

“Internet regulation is a question of ‘vast economic and political significance,’ yet the FCC  didn’t even bother to weigh the costs and benefits of its rule,” said Ben Sperry, Associate Director of the International Center for Law & Economics. “FCC Chairman Tom Wheeler never misses an opportunity to talk about the the Internet as ‘the most important network known to Man.’ So why did he and the previous FCC Chairman ignore requests from other commissioners for serious, independent economic analysis of the supposed problem and the best way to address it? Why did the FCC rush to adopt a plan that had the effect of blocking the Federal Trade Commission from applying its consumer protection laws to the Internet? For all the FCC’s talk about protecting consumers, it appears that its real agenda may be simply expanding its own power.”

Joining ICLE on the brief are:

  • Richard Epstein (NYU Law)
  • James Huffman (Lewis & Clark Law)
  • Gus Hurwitz (Nebraska Law)
  • Thom Lambert (Missouri Law)
  • Daniel Lyons (Boston College Law)
  • Geoffrey Manne (ICLE)
  • Randy May (Free State Foundation)
  • Jeremy Rabkin (GMU Law)
  • Ronald Rotunda (Chapman Law)
  • Ilya Somin (GMU Law)

Read the brief here, and a summary here.

Read more of ICLE’s work on net neutrality and Title II, including:

  • Highlights from policy and legal comments filed by ICLE and TechFreedom on net neutrality
  • "Regulating the Most Powerful Network Ever," a scholarly essay by Gus Hurwitz for the Free State Foundation
  • “How to Break the Internet,” an essay by Geoffrey Manne and Ben Sperry, in Reason Magazine
  • “The FCC’s Net Neutrality Victory is Anything But,” an op-ed by Geoffrey Manne, in Wired
  • “The Feds Lost on Net Neutrality, But Won Control of the Internet,” an op-ed by Geoffrey Manne and Berin Szoka in Wired
  • "Net Neutrality's Hollow Promise to Startups," an op-ed by Geoffrey Manne and Berin Szoka in Computerworld
  • Letter signed by 32 scholars urging the FTC to caution the FCC against adopting per se net neutrality rules by reclassifying ISPs under Title II
  • The FCC's Open Internet Roundtables, Policy Approaches, Panel 3, Enhancing Transparency, with Geoffrey Manne​
ICLE Executive Director Geoffrey Manne appointed to FCC Consumer Advisory Committee PDF Print E-mail

The International Center for Law and Economics (ICLE) is pleased to announce that its founder and Executive Director, Geoffrey A. Manne, has been appointed by Federal Communications Commission Chairman Tom Wheeler to serve on the FCC's Consumer Advisory Committee.

The appointment is for a term of two years, and the Committee will meet a few times a year in Washington, DC. ICLE, and Mr. Manne's role at ICLE, will be unaffected by his participation on the Committee.

The Consumer Advisory Committee's mission is:

[T]o make recommendations to the Commission regarding consumer issues within the jurisdiction of the Commission and to facilitate the participation of consumers...

The Committee may consider issues including, but not limited to, the following topics:

  • Consumer protection and education
  • Implementation of Commission rules and consumer participation in the FCC rulemaking process; and,
  • The impact of new and emerging communication technologies...

In particular, as directed by the FCC’s 2015 Open Internet Order, the CAC will “formulate and submit to the Commission a proposed Open Internet enhanced transparency rule disclosure format.”

A nationally recognized expert in the law and economics of telecommunications, antitrust, consumer protection, intellectual property, and international economic regulation, Geoffrey Manne is the editor, with FTC Commissioner Joshua Wright, of Competition Policy and Intellectual Property Law Under Uncertainty: Regulating Innovation, a volume from Cambridge University Press. His other publications have appeared in the Journal of Competition Law and Economics, the Harvard Journal of Law and Public Policy and the Columbia Business Law Journal, among many other law reviews and popular media outlets.

Mr. Manne has written extensively on consumer protection issues, including the regulation of corporate disclosures, privacy and data security. He is regularly invited to speak on the economic impacts of public policy issues and to provide oral and written testimony on these issues to the United States Congress. Mr. Manne recently participated in the FCC's Open Internet Roundtable on transparency, and he has filed numerous comments before the FCC and the FTC, as well as amicus briefs in the Supreme Court and several federal appeals courts.

Prior to founding ICLE, Geoffrey Manne was a law professor specializing in antitrust law and economics, intellectual property, corporate governance and international economic regulation at Lewis & Clark Law School in Portland, OR. From 2006-2008, while on leave from teaching, he directed Microsoft’s law and economics academic outreach program.

Mr. Manne practiced antitrust and appellate law at Latham & Watkins LLP, and served as a lecturer in law at the University of Chicago and the University of Virginia law schools. His father, Henry G. Manne, was Dean Emeritus at George Mason University and one of the four founders of the Law and Economics movement.

The FCC announcement can be found here.

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