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New Net Rules Could Be ‘Strike Three For The FCC’

In a 3-2 party-line vote, the FCC decided Thursday to apply public utility regulations to the Internet, but opponents seem confident that the rules will be struck down in court.

FCC Chairman Tom Wheeler, who proposed the regulations at the beginning of the month, claims they will promote net neutrality— the concept that internet service providers should not be allowed to either block legal content or prioritize certain types of content by charging fees for faster access speeds.

Others, however, argue that the new rules are an excessive solution that will hamper investment and innovation, and predict that federal judges will ultimately conclude that the FCC has overstepped its authority. (RELATED: Net Neutrality Bait and Switch to Title II)

“The courts will ultimately decide this Order’s fate,” said Republican Commissioner Ajit Pai, noting that, “litigants are already lining up to seek judicial review of these new rules.”

“We know from the history of previous networks that both human nature and economic opportunism act to encourage network owners to become gatekeepers that prioritize their interests over the interests of their users,” Wheeler said in a statement.

To prevent that type of behavior, “the Open Internet Order reclassifies broadband Internet access as a ‘telecommunications service’ under Title II of the Communications Act while simultaneously forgoing utility-style, burdensome regulation that would harm investment.” (RELATED: FCC Votes in Favor of Net Neutrality)

The matter of forgoing regulation, also known as “forbearance,” has attracted scorn from many critics, who pointed out that even if the current commissioners are willing to forbear from enforcing the most “burdensome” regulations allowed under Title II, future commissioners could always reverse that decision.

Net Competition, a group that opposes Title II, also argued in a press release that, “it is doubtful that the FCC has the express authority to forbear from, or effectively ignore, the clear implications of an explicit definition in the law.”

If courts reach that conclusion, the FCC would be compelled to apply the full range of regulations contained in the order, leading to rate regulation and other anti-competitive actions.

Scott Cleland, the chairman of Net Competition, said in a statement that, “this is very likely strike three for the FCC,” pointing out that courts have already overturned two previous attempts by the Commission to impose a similar regulatory framework.

“Their arbitrarily partisan, Rube Goldberg legal theory, teeters on top of a foundation of falsehoods and a wholesale rejection of many years of FCC findings of facts and bipartisan precedents,” Cleland added.

Moreover, many believe that net neutrality could be more effectively promoted through legislation. (RELATED: Republicans Solicit Feedback on Net Neutrality)

Republican Sen. Orrin Hatch, member and former chairman of the Senate Judiciary Committee, argued that, “The FCC’s power grab, which will mean government regulation dictating how Internet providers can and cannot serve their customers, is a recipe for stagnation, not innovation.”

“Existing law provides all the tools necessary to ensure that Internet companies treat customers fairly and honestly,” he explained, adding that, “the right way to promote a free and open Internet is to vigorously enforce our nation’s antitrust laws, not to shoehorn a great powerhouse of modern innovation into a ninety-year-old framework.”

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