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ICLE was cited in a Law360 story on the Federal Communications Commission’s plan to reimpose Title II on broadband providers. You can read the full piece here.

The International Center for Law & Economics waded into the contentious debate over what regulations would apply to the service if it is reclassified as a Title II service under the Communications Act with a Friday letter that pointed toward an article written by one of the think tank’s own, calling the foreign ownership rules a “trojan horse.” Title II of the act governs telecommunications services. Currently, broadband is regulated as an information service under Title I of the law and is subject to less regulation.

…But according to the think tank, applying Section 214 to broadband companies would “necessitate FCC approval for essential operational decisions, such as network upgrades or service discontinuations, thereby stifling innovation, investment, and the broader objectives of national broadband expansion.”

The think tank also highlights the argument that putting such regulation upon ISPs could “undermine public safety and network resiliency” by making it harder for companies to switch over to newer and safer technologies, since to do so might trigger burdensome regulatory oversight.

Instead, the think tank said it wanted to urge the FCC to “seek a regulatory approach that fosters innovation, investment, and the robust expansion of broadband access across the United States, without imposing unnecessary and counterproductive burdens.”

Communications Daily – ICLE Director of Innovation Policy Kristian Stout was quoted by Communications Daily in a story about the Federal Communications Commission’s vote to reinstate Title II regulations on broadband providers. You can read full piece here.

The reintroduction of Title II regulation “stands on even shakier ground now than it did in 2015,” said Kristian Stout, International Center for Law & Economics director-innovation policy: “The wisdom behind the commission’s 2018 Restoring Internet Freedom Order is more evident with each passing year, as the broadband market continues to demonstrate no need for utility-style regulations.” He said the rulemaking presents a major questions doctrine issue “that will leave the FCC in an uphill battle before the U.S. Supreme Court in the face of inevitable legal challenges.”

Law360 – ICLE Director of Innovation Policy Kristian Stout was quoted by Law360 in a story about the Federal Communications Commission’s vote to reinstate net neutrality rules. You can read full piece here.

Some think tanks, including the International Center for Law & Economics, continued to oppose the FCC’s initiative on both policy and legal grounds.

“The justifications the FCC has put forward for imposing Title II obligations on broadband providers not only lack merit, but emphasize the likely legal challenges this order will face,” said Kristian Stout, ICLE director of innovation policy, in a statement.

Stout said the commission’s rulemaking presents a major-questions issue “that will leave the FCC in an uphill battle before the U.S. Supreme Court in the face of inevitable legal challenges.” The major-questions doctrine says large-scale regulatory initiatives that have broad impacts can’t be grounded in vague, minor and obscure provisions of law.

PORTLAND, Ore. (Oct. 19, 2023) – The International Center for Law & Economics (ICLE) offers the following statement from ICLE Director of Innovation Policy Kristian Stout in response to today’s vote by the Federal Communications Commission (FCC) to initiate a rulemaking proceeding reinstating Title II regulations on broadband providers:

This attempt by the Federal Communications Commission (FCC) to reintroduce Title II regulations (often referred to as “net neutrality”) stands on even shakier ground now than it did in 2015. The wisdom behind the commission’s 2018 Restoring Internet Freedom Order is more evident with each passing year, as the broadband market continues to demonstrate no need for utility-style regulations.

The justifications the FCC has put forward for imposing Title II obligations on broadband providers not only lack merit, but emphasize the likely legal challenges this order will face. The commission’s rulemaking present a “major questions doctrine” issue that will leave the FCC in an uphill battle before the U.S. Supreme Court in the face of inevitable legal challenges.

After considering the record in the pending proceeding, one hopes the commission will realize that Title II is simply a mistake for the broadband industry, and that it will abandon this ill-fated effort.

To schedule an interview with Kristian about the FCC’s planned regulations, contact ICLE Media and Communications Manager Elizabeth Lincicome at [email protected] or (919) 744-8087.

DC Journal – ICLE Director of Law & Economics Programs Gus Hurwitz was cited in DC Journal in a story about the Federal Communications Commission’s play to reimpose net neutrality. You can read full piece here.

Beyond the army of digital activists calling for net neutrality, Silicon Valley giants like Google, Netflix and Apple led the charge on net neutrality. University of Nebraska Law Scholar Gus Hurwitz wrote in The Washington Post in 2017, “The net neutrality rules are pure rent seeking by a content/edge industry as a way to hinder potential industrial competitors.”

Law360 – ICLE Senior Scholar Eric Fruits was quoted by Law360 in a story about the Federal Communications Commission’s efforts to reinstate net neutrality. You can read full piece here.

Eric Fruits, a senior scholar at the International Center for Law and Economics, told Law360 on Wednesday the FCC has multiple avenues to use common-carrier regulation to affect broadband rates. “One of the big concerns that people have about the Title II reclassification is that it does open the door for rate regulation,” he said. “In some sense, one of the main purposes of Title II, at least with respect to telecoms, is rate regulation.”

Fruits, who recently co-authored a report with Geoffrey Manne on “de facto rate regulation” in the telecom sector, noted that with the 2015 net neutrality order, the FCC made clear it was not tackling that issue. Rosenworcel this week was “pretty adamant that they’re not doing it,” he said, but even so “there are some other issues that I think raise questions.”

For example, the chair mentioned banning paid prioritization several times, which the 2015 Open Internet Order did, “and it’s really hard to say [that] is not a form of rate regulation,” he said.

Another issue that will probably come up is zero-rating, which is an industry practice that involves not applying data caps to certain services. Fruits said that issue was never fully resolved from the 2015 order. “I think that is an issue that could come up again,” he said. “If you get rid of zero-rating, that again, is a form of rate regulation.”

Fruits said other concerns could arise from a Title II classification such as rates for attaching broadband equipment to utility poles.

Communications Daily – ICLE Director of Innovation Policy Kristian Stout was quoted by Communications Daily in a story about the Federal Communications Commission’s plan to reinstate net-neutrality rules. You can read full piece here.

“Despite dire predictions, the internet has thrived in the absence of utility-style net-neutrality regulations,” said Kristian Stout, International Center for Law & Economics director-innovation policy. Stout also questioned whether the FCC has the authority to impose Title II regulation on broadband: “As the U.S. Supreme Court has made clear through its ‘major questions’ doctrine, federal agencies cannot make major regulatory moves without explicit authorization from Congress.”

PORTLAND, Ore. (Sept. 26, 2023) – The International Center for Law & Economics (ICLE) offers the following statement from ICLE Director of Innovation Policy Kristian Stout in response to today’s announcement by Federal Communications Commission (FCC) Chair Jessica Rosenworcel that the FCC plans to open the process for reimposing net neutrality:

Despite dire predictions, the internet has thrived in the absence of utility-style net-neutrality regulations. When the FCC repealed net neutrality in 2018, advocates claimed that without these rules, innovation would cease and access would suffer. But the opposite has occurred: more services are available at faster speeds than ever before. During the COVID-19 pandemic, our broadband networks proved remarkably robust, supporting a massive shift to remote work and school. U.S. networks also outperformed those in many countries with net-neutrality rules. These facts demonstrate that heavy-handed regulation is not needed to preserve a free and open internet.

Moreover, the FCC does not have clear authority from Congress to reclassify broadband as a common-carrier service or to impose utility-style regulations. As the U.S. Supreme Court has made clear through its “major questions” doctrine, federal agencies cannot make major regulatory moves without explicit authorization from Congress. Regulating net neutrality involves complex economic and political considerations that Congress has actively debated, without granting the FCC power to resolve them. Any attempt by the FCC to adopt net-neutrality rules through reclassification would likely be struck down by the Supreme Court as exceeding the agency’s authority. Rather than wasting time and resources pursuing legally dubious regulations, the FCC should allow Congress to legislate on this major policy issue.

To schedule an interview with Kristian about the FCC’s planned regulations, contact ICLE Media and Communications Manager Elizabeth Lincicome at [email protected] or (919) 744-8087.

Communications Daily – ICLE Director of Law & Economics Programs Gus Hurwitz was quoted by Communications Daily in a story about the Supreme Court’s decision in West Virginia v. EPA and the impact it could have on U.S. administrative law broadly. You can read full story (behind a subscriber firewall) here.

“Huge decision,” emailed Gus Hurwitz, professor at the University of Nebraska College of Law. “The big picture is that it shifts power from the executive back to the legislative, with a note from the Court reading ‘Dear Congress, do your damn job,'” he said. “Title II-based net neutrality rules are DOA,” he said. The opinion raises questions about how the FTC can use its unfair methods of competition (UMC) authority, he said: “The most useful gloss is probably that if an agency wants to reshape an important industry the authority and tools it uses need to be clearly delineated by Congress. That doesn’t bode well for the FTC using its UMC authority to go after big tech or longstanding and widespread business practices.”