July 19, 2018


Two decades of controversy over Federal Communications Commission (FCC) attempts to regulate the Internet across Clinton, Bush, Obama, and now the Trump administration reaches the Supreme Court in the coming term via Daniel Berninger, et al v. Federal Communications Commission.  The case challenges an appeals court endorsement of agency Chevron deference regarding discretion to regulate the Internet found nowhere in the statute.  The necessary ambiguity of jurisdiction over the world of computers and networking supposedly remains after 60 years of refinement by all three branches of government.  The grant of Chevron deference expands Commission regulatory authority over the economy by a factor of 10.

The standard narrative presumes the Restoring Internet Freedom (RIF) Order and fifth attempt at Internet regulation moots a Supreme Court review of the Open Internet Order (OIO) and fourth attempt at Internet regulation.  The proverb “two wrongs don’t make a right” applies to the RIF Order and all attempts by the Commission to codify Internet regulation.  The mootness claim ignores the reliance of the RIF Order on the same Chevron deference applied by the appeals court to the Open Internet Order.  The RIF Order provides a necessary interim answer to the Obama administration imposition Title II classification on the Internet, but no one believes the RIF Order or any other agency action holds any hope of ending the controversy.

Cycling through the Court of Appeals for the District of Columbia Circuit cannot resolve the controversy.  Agency action serves only to excuse legislative inaction and ignores First Amendment and Article I questions only the Supreme Court can settle.  The litany of troubles suffered by the RIF Order expose agency action as the cause not the solution to anarchy roiling one of the largest and most important sectors of the economy.  Trump Administration support for a grant of certiorari in Daniel Berninger, et al v. Federal Communication Commission would freeze the RIF Order litigation (and associated chaos) with 22 State Attorney Generals joining entire advocacy ecosystem as plaintiffs.

Berninger v. FCC offers the first best opportunity for a Supreme Court that includes Justice Gorsuch to weigh-in on the powers the Administrative State to self-legislate.  The grant of Chevron deference to the Open Internet Order (and by presumption to the RIF Order) sets a new high water mark for the 30-year old precedent.  The express wording of Commission authority in the Telecommunication Act of 1996 precludes regulation of the Internet.  The fact the Commission claims authority to regulate the Internet exists in a 1934 Depression-era law predating both computers and networking illustrates the problematic ambiguity of “ambiguity” as the legal threshold of Chevron deference.

The Supreme Court already recognizes the Internet as a wholly new communication media entirely separate from the telephone network via the 9-0 Reno v. ACLU decision in 1996.  Yet, the DC Circuit accepts as “reasonable” the Commission’s declaration of an equivalence between telephone numbers and IP addresses as the basis to impose Title II of the Communication Act of 1934 on the Internet.  The “reasonableness” threshold starts to look like “arbitrariness” as the Commission might use the same Chevron discretion to pull the Internet under the cable, broadcasting, or wireless Titles of the Act.

The subject of a policy virtue of neutrality appears nowhere in either the Communication Act of 1934 or in the Telecommunications Act of 1996.  The polar opposite policy theories underlying the Open Internet Order and Restoring Internet Freedom Order reveal an agency with no statutory constraints at all.  Supposed ambiguity and reasonableness turns the FCC Chairman into a Communication Czar with the power to invent policies by immaculate conception.  The removal of Constitutional constraints converts policy debates into the type of anarchy the founders sought to avoid.  The partisan policy “tug-of-war” becomes bomb and death threats and the need to assign a DHS security detail to the FCC Chairman.

The parting advice Justice Kennedy regarding the need to address Chevron in Pereira v. Sessions and the spotlight on Chevron with the nomination of Brett Kavanaugh creates a unique opportunity.  Failure to act leaves a world where each partisan change in agency majorities changes the “side of the road we drive” and by extension the “location of steering wheels in cars”.  The havoc caused by the abuse and divergent application of the Chevron U.S.A., Inc. v. Natural Resources Defense Council precedent threatens the basic legitimacy of government.  There remains time for the Trump Administration to intervene and support a grant of certiorari in the challenge to the Open Internet Order via the agency’s reply to Daniel Berninger, et al v. Federal Communications Commission due by August 15, 2018.

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Daniel Berninger is founder of VCXC and the petitioner in Berninger v. Federal Communications Commission which is pending petition before the Supreme Court.

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