All three judges in Verizon v. FCC agreed that the net neutrality order regulating the Internet was, as I’ve said all along, illegal. The heart of the rule, a requirement (contrary to the history and structure of the Internet) that all bits be treated equally, was a bar on diverse business models and a de facto subsidy to big content companies that wanted regulators to guarantee the full costs of broadband deployment would fall on consumers and taxpayers – not on them.
Politically, this is a huge setback for the Obama administration’s anti-democratic penchant for sidestepping Congress and ruling by regulatory and executive decree. It’s also a blow to Senate Democrats, who unanimously voted not to overturn this rule, despite the fact that it was widely acknowledged to be illegal – which has now been confirmed in court.
Judge David Tatel’s majority opinion, joined by Judith Rogers (both Clinton appointees), goes to great lengths to defer to the FCC’s dubious effort to discover affirmative regulatory authority in a provision that was intended to be deregulatory. But even Tatel then concludes that even if general authority to regulate broadband Internet providers exists, the FCC cannot (having already correctly determined that broadband Internet is an information service, not an old-fashioned telephone monopoly) proceed to regulate as if broadband providers were old-time common carriers.
Reagan-appointee Judge Laurence Silberman’s stinging dissent goes much further, rejecting the FCC’s jurisdictional claim and mocking its rationale for the rule. In the last paragraph in particular is a brilliant dig at the big content companies that have pushed for this rule:
“This regulation essentially provides an economic preference to a politically powerful constituency, a constituency that, as is true of typical rent seekers, wishes protection against market forces.”
Indeed. But content companies that see government regulation as a good way to ensure a free ride should think twice about the ultraliberal advocacy groups they are funding and making common cause with, because they may end up destroying the free-market Internet that has served them so well.
It’s always worth remembering that Robert McChesney, founder of Free Press, a group with deep ties to the Obama administration and the FCC, once explained this to a socialist website:
Phil Kerpen is president of American Commitment, a columnist on Fox News Opinion, chairman of the Internet Freedom Coalition, and author of the 2011 book Democracy Denied.
American Commitment is dedicated to restoring and protecting America’s core commitment to free markets, economic growth, Constitutionally-limited government, property rights, and individual freedom.
Washingtonian magazine named Mr. Kerpen to their "Guest List" in 2008 and The Hill newspaper named Mr. Kerpen a "Top Grassroots Lobbyist" in 2011.
Mr. Kerpen's op-eds have run in newspapers across the country and he is a frequent radio and television commentator on economic growth issues.
Prior to joining American Commitment, Mr. Kerpen served as vice president for policy at Americans for Prosperity. Mr. Kerpen has also previously worked as an analyst and researcher for the Free Enterprise Fund, the Club for Growth, and the Cato Institute.
A native of Brooklyn, N.Y., Mr. Kerpen currently resides in Washington, D.C. with his wife Joanna and their daughter Lilly.