The FCC assertion of common carrier authority over Internet service is a statutory construction train wreck, TechFreedom suggests, with at least three strikes against it:
1. The FCC presumes that Congress delegated to the FCC "unilaterally" the decision on a question of "utmost" political and economic significance, despite express statutory authority and "subsequent legislative history" signaling Congress did not intend for the FCC to regulate the Internet period, much less under Title II regs written for a 19th century railroad network.
2. The FCC's reinterpretation of statute required it to extensively forbear from Title II regs, which the brief points out the FCC calls tailoring and the brief suggests is a clear sign the FCC too the "wrong interpretive turn."
3. By claiming the regulatory power without demonstrating the necessity to prevent significant and actual risks to the public, the FCC is assert the kind of sweeping delegation of power the Supreme Court has told agencies to avoid.
And even if the statutory language were "merely" ambiguous, TechFreedom et al. argue that the court should not accord the FCC Chevron deference (the legal theory of deferring to an agency's have subject matter expertise when it comes to statutory interpretation where the statute is not clear).
The FCC's action raises lots of questions, including "will its forbearance increase or decrease? Will it reclassify other Internet services as telecommunications? How will it apply vague rules on interconnection, paid prioritization, privacy and general conduct?," TechFreedom said. But in terms of the case, it said, those are irrelevant. "[i]f granting the FCC greater authority to regulate Internet access is the wisest policy decision," it says, "then it is the role of Congress to enact such legislation. The FCC does not have the authority to unilaterally expand its jurisdiction through a drastic reinterpretation of the statute, and the Courts cannot sit idly by as the FCC embarks on a multi-year voyage of discovery."
In addition to TechFreedom, other names on the brief are Cari.net, Jeff Pulver, Scott Bannister, Charles Giancarlo, Wendell Brown and David Frankel, which includes some so-called "tech elders" and VoIP pioneers who have been highly critical of the rules and their potential impact on their businesses.