The FCC "claims it must regulate broadly, so as to 'protect consumer choice, free expression, end-user control, and the ability to innovate without permission,' which certainly indicates a Commission objective that exceeds the statutory authority granted in 706," Silberman writes. The court's majority goes even further, creating a rationale for further FCC action that, in practical terms, is almost unlimited. In the majority's reading, 706 becomes "carte blanche to issue any regulation that the Commission might believe to be in the public interest."
By contrast, Silberman argues, 706 actually requires the FCC "to identify a 'barrier to infrastructure investment' or a measure that 'promote[s] competition' in the broadband market — which it has not." In other words, the Open Internet Order doesn't have an intellectual leg to stand on.
Silberman notes the FCC's purported fear, one might almost say panic, that broadband providers might discriminate against or even block various "edge providers" (companies that offer an array of Internet-based services to consumers) because they want to favor their own, competing services. The majority went further: it asserts that the FCC "found that broadband providers have the technical and economic ability to impose restrictions."
There is one problem with this assertion, says Silberman. The FCC "never actually made such a finding. Its conclusion are littered with "may," "if," and "might," he says. He agrees that the court should defer to the agency's "predictive judgments" in such instances "but deference to such a judgment must be based on some logic and evidence, not sheer speculation."
In short, there is no real evidence (at least as presented by the FCC in this case) that shows broadband providers actually restricting edge providers or, if they are, whether the providers "are economically capable of restricting consumer choice." As the FCC itself noted in its presentation, Silberman writes, "there are potentially efficient, pro-consumer reasons that an individual broadband provider might wish to restrict access to some edge providers."
"The Commission's anecdotes [of alleged restrictions imposed] then do not show that any broadband providers are capable of actually causing the harm about which the Commission is concerned," Silberman writes.
Silberman's opinion, at least, is indeed a wake-up call. It's a wake-up to the FCC to do its homework and begin a disciplined study of the still-evolving broadband market, and to have a bit more humility about the deleterious effects of poorly thought-out policies. The effects of the hubris of good intentions are plain to see in the attempted rollout of the Affordable Care Act.
But on behalf of President Obama, I would like to assure the millions of American Internet users that if you like the broadband plan you have, you can keep it.
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