Every normal man must be tempted, at times, to spit on his hands, hoist the black flag, and begin slitting throats. –H.L. Mencken
As we saw in Part 1, two of the three parts of the FCC’s “Open Internet Order”, or “Net Neutrality” were struck down by a recent court ruling.
The reason why is found in the opinion of Laurence Silberman, the senior circuit judge in this case, who concurred in part and dissented in part. His opinion contains some interesting thoughts.
Silberman has been the author of several other prominent opinions including Parker vs. the District of Columbia in which he ruled that DC’s ban on registration and carrying of firearms violated the second amendment. But he also argued in favor of the Affordable Care Act, aka Obamacare, citing the ever-present Interstate Commerce clause, so it’s a bit hard to get a read on him.
He begins the opinion with this introduction:
I am in general agreement with the majority’s conclusion that the Open Internet Order impermissibly subjects broadband providers to treatment as common carriers, but I disagree with the majority’s conclusion that § 706 otherwise provides the FCC with affirmative statutory authority to promulgate these rules. I also think the Commission’s reasoning violates the Administrative Procedure Act. These differences are important since the majority opinion suggests possible regulatory modifications that might circumvent the prohibition against common carrier treatment.
Specifically, the majority opinion states:
Thus, we must determine whether the requirements imposed by the Open Internet Order subject broadband providers to common carrier treatment. If they do, then given the manner in which the Commission has chosen to classify broadband providers, the regulations cannot stand.
This gets to the heart of why I said earlier that it is a bittersweet decision. The ruling actually says that it’s because of the way the FCC defined broadband carriers that they are not allowed to enforce net neutrality.
This is hardly a ringing endorsement of private property, which, at its core , is what these cases are about.
The broadband carriers (Verizon, Comcast, Time Warner, etc) build, operate, and maintain physical infrastructure that is used to provide a service to its customers. These customers are both the residential subscribers (you and me) and content providers (Netflix, Hulu, and Amazon).
Objections and arguments that broadband is a “right” notwithstanding, no one is forced to contract with these carriers for Internet service. That is a choice. Libertarianism recognizes no positive rights.
It is also a choice for both the individuals and corporations to stop using a given service if the quality or service level does not meet their expectations or requirements. This is how, in a free market, good business stick around and bad ones go away. More about this in Part 3.
But, you may object, sometimes there is only one choice of Internet provider in a given geographic area, so there is no option to switch. You may be correct, there may be no other option. This does not, however, mean that it is now OK to violate others’ property rights.
The fact is, you are getting what you contracted and are paying for. If you aren’t then you can stop paying.
Forcing an owner of private property, say Verizon, to use their property in a way they don’t wish to, and/or that is detrimental to them financially is a violation of their rights.
Returning to the ruling, it seems that if you are the FCC you have two ways around the recent decision. They can either, as Silberman notes, reclassify broadband carriers as “common carriers” and thus subject them to the anti-blocking and anti-discrimination rules or somehow rewrite the Order to fit its goals without treating broadband carriers as “common”.
Given that the FCC has been shot down twice now by this appellate court in its attempts to do the latter, it seems unlikely they can or will pursue that course any further, the hubris of tyrannical bureaucrats notwithstanding. I think the former is more likely and thus this is not the last we have heard from the FCC on net neutrality.
Next Tuesday in Part 3, we’ll look at whether, from an economic perspective, there is really a need for the FCC to enforce so-called “neutrality”.