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In a blow to Internet freedom, a federal appeals court has given a green light to the Federal Communications Commission's (FCC) Open Internet Order, a plan to impose net neutrality rules on the Internet. Most disturbingly, the ruling yesterday by a 3-judge panel of the D.C. Circuit affirmed the basis for the Order, the FCC's determination that it can apply utility-style regulations – intended for telephone companies under the Communications Act of 1934 – to land-based and wireless Internet service providers (ISP). In one of the most egregious instances of overreaching by federal agencies under the Obama Administration, the FCC used the determination to grant itself sweeping power to regulate the Internet, opening the door to a plethora of burdensome Internet regulations.
Even if we put aside the FCC's overstepping of the authority granted to it by Congress in the 1934 Act, the agency's Open Internet Order is bad news for free market principles and consumers. The FCC's net neutrality rules are a classic example of the government limiting the options available to consumers by imposing a one-size-fits-all solution to a non-existent problem. As FreedomWorks has pointed out:
"[The FCC rule requiring] an ISP to provide equal access to all web content is akin to forcing a restaurant to serve every type of food. .. Just as cable companies offer a variety of packages for people who like sports, or movies, or news, why shouldn’t ISPs be allowed to tailor their service, and their prices, to individual needs?"
Moreover, the net neutrality rules will stifle innovations in the marketplace that would otherwise benefit consumers, while also discouraging investment in the sorely-needed expansion of Internet infrastructure. The result, warns Rep. Marsha Blackburn (R-Tenn.), will be higher costs for consumers, less accessibility for Internet users, and an open door to government regulation of political content on the Internet. The First Amendment threat posed by the FCC rules is not limited to political speech. Small ISPs that cater to various religious communities by blocking religiously objectionable Internet content run afoul of the net neutrality rules and may well be driven out of business by the FCC.
The various threats posed by the FCC's overreaching Open Internet Order point out the importance of FreedomWorks' Digital Bill of Rights (click here to show your support), which includes the principle that "The government should never actively prevent people from being able to take advantage of the Internet’s bounty. This means no taxation of Internet access, and not restricting the means by which service providers offer access." The net neutrality rules are clearly in violation of that principle.
Many Congressional Republicans were critical of the D.C. Circuit's decision, including calls for legislation to undo the FCC's Open Internet Order. However, until there is a Republican President willing to sign such legislation, hope lies in an appeal of yesterday's ruling by the plaintiffs. The first appeal may be to the full D.C. Circuit, but success is unlikely there given that President Obama and Senate Democratic Leader Harry Reid teamed up in 2013 to pack that all-important court with liberal judges using the nuclear option. However, many observers believe the legality of the FCC order will ultimately be decided by the Supreme Court.