Spiwak: Title II Debate About Power

Calls Open Internet order 'a legal perversion' abetted by court

Phoenix Center president Lawrence Spiwak said that there should be more focus on how the FCC implemented the controversial Title II reclassification of ISPs and that a deeper dive into the matter would show it to be a gross distortion of Title II that the courts surprisingly upheld.

That came in a new policy bulletin, USTelecom and its Aftermath, that asserts net neutrality is "all about" rate regulation, and so the FCC's attempt to "get around that legal inconvenience" by not applying more of the Title II regulations was a "legal perversion" on which the court gave its stamp of approval, in effect expanding the FCC's authority "well beyond" statute.

The FCC under new chairman Ajit Pai has proposed to roll back Title II and reconsider the Open Internet order. It is currently seeking comment on just how to do that.

Former FCC chair Tom Wheeler used the fact that the FCC was forbearing from applying most of the Title II regs as a selling point with ISPs opposed to reclassification, but Spiwak hardly sees it that way.

"While the Commission certainly has great latitude to interpret the Communications Act, the agency must nonetheless operate 'within the bounds of reasonable interpretation' and it is not at liberty to pick and choose select provisions of the statute to govern for the sake of expediency.

“Properly viewed, the current iteration of the net-neutrality debate is not really about an ‘Open Internet,’ free speech or even who has the biggest Reese’s Peanut Butter mug," Spiwak continued. "It’s about power. An administrative agency should not be permitted, on its own initiative, to expand its power beyond its statutory mandate at the expense of private actors’ Fifth Amendment due process protections."

Spiwak was referring to Pai's oversized Reese's coffee mug, which he was using at an FCC public meeting and which Title II fan John Oliver subsequently mocked on Last Week Tonight, his HBO show.

Spiwak also argued the FCC used the same "legal perversion" to try to regulate the price of business data services (BDS) before that proposal was pulled by Wheeler in the wake of the Donald Trump's election victory and a signal from Congress to stand down from any potentially controversial decisions in the waning days of President Obama's tenure.

And while Spiwak has plenty of bones to pick with the FCC order, the federal appeals court that upheld that order does not escape the lash.

"With the D.C. Circuit’s decision in USTelecom, the FCC apparently now has carte blanche to tailor its enabling statute to fit a results-driven outcome and trample on key due process concerns so long as it can sprinkle some pixie dust about promoting broadband deployment," Spiwake said. "And if that unbridled expansion of regulatory power doesn’t scare you, then it damn well should."