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The FCC is Illegally Rewriting the Communications Act PDF Print E-mail

Today, the Federal Communications Commission released new net neutrality rules in a 400-page order that prompted lengthy, detailed dissents from Commissioners Pai and O'Rielly. ICLE's Geoffrey Manne and TechFreedom's Berin Szoka respond:

This order represents the triumph of political forces over sound policymaking,” said TechFreedom President Berin Szoka. “It effectively destroys nearly 18 years of bipartisan consensus. It's a radical break even from the FCC’s proposed rules. In fact, the entire rulemaking may founder in court simply because Wheeler refused to issue a further NPRM to adequately develop the record. Politicization of the process may also cost the FCC the deference agencies usually enjoy when they’ve followed normal processes.”

Essentially, the FCC is saying, ‘just trust us,’” said ICLE Executive Director Geoffrey Manne. “But the Order is brimming with reasons not to. Perhaps the Order’s most astonishing admission is that the FCC intends to use its newly asserted authority under Title II not only to ensure, as it claims throughout in the Order, the ability to protect an open Internet, but also to saddle broadband providers and other services with whatever other regulations in Title II the FCC deems appropriate. This sly caveat, buried deep in the Order, nullifies the FCC’s fevered assurances that it will preserve the light touch approach begun under President Clinton.”

The FCC is effectively, and illegally, rewriting the Communications Act,” argued Szoka. The Order mentions ‘tailoring’ in one form or another 77 times, but doesn’t reference even once the Supreme Court’s decision last year holding that such radical tailoring is a job for Congress, not regulators. The Order allows the FCC to go much, much further than it has gone today — but also to do the opposite. We’re now just one presidential election away from Republicans using the FCC’s new standard of ‘forbearance without evidence’ to gut not just net neutrality rules, but the entire Act. To say that opening the door to such political ping-pong brings ‘certainty' makes a mockery of the word. The only way to restore sanity at the FCC is for Congress to finally update the Communications Act.”

“The FCC has never gotten far enough in court to face the significant Constitutional arguments against its power grab,” concluded Manne. “But the Order reveals the weakness of the FCC’s First Amendment arguments. The FCC justifies its expansive interpretation of Sections 201 and 202 by claiming that broader rules will ‘remove ambiguity.’ But such an approach is decidedly not ‘no more burdensome than necessary,’ as First Amendment review requires. In fact, the FCC admits that its claimed authority grants the agency the nearly unfettered discretion to issue future rules. That is does so while disclaiming any need to justify such future rules under Title II today portends a dire future for free expression on the Internet as the FCC embarks on this regulatory slippery slope.”

We can be reached for comment at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . See more of our work on net neutrality and Title II, including:

About The International Center for Law and Economics:

The International Center for Law and Economics is a non-profit, non-partisan research center aimed at fostering rigorous policy analysis and evidence-based regulation.

About TechFreedom:

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

Broad Fair Use Exceptions Could Discourage Innovation Worldwide PDF Print E-mail

Today, the International Center for Law & Economics released a white paper, co-authored by Executive Director Geoffrey Manne and Senior Fellow Julian Morris, entitled Dangerous Exception: The detrimental effects of including “fair use” copyright exceptions in free trade agreements.

Dangerous Exception explores the relationship between copyright, creativity and economic development in a networked global marketplace. In particular, it examines the evidence for and against mandating a U.S.-style fair use exception to copyright via free trade agreements like the Trans-Pacific Partnership (TPP), and through “fast-track” trade promotion authority (TPA).

In the context of these ongoing trade negotiations, some organizations have been advocating for the inclusion of dramatically expanded copyright exceptions in place of more limited language requiring that such exceptions conform to the “three-step test” implemented by the 1994 TRIPs Agreement.

The paper argues that if broad fair use exceptions are infused into trade agreements they could increase piracy and discourage artistic creation and innovation — especially in nations without a strong legal tradition implementing such provisions.

The expansion of digital networks across borders, combined with historically weak copyright enforcement in many nations, poses a major challenge to a broadened fair use exception. The modern digital economy calls for appropriate, but limited, copyright exceptions — not their expansion.

The white paper is available here. For some of our previous work on related issues, see:

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