Statement from Americans for Tax Reform’s Katie McAuliffe regarding the opening arguments on Net Neutrality:
The thrust of the case will come down to whether the FCC has statutory authority to regulate broadband providers. Broadband has been defined by the FCC as an information service, not a common carrier (in layman’s terms, telephone service). As such, the FCC has no authority to regulate broadband. Today the court rightly appeared skeptical of the FCC’s claims of regulatory authority over broadband via section 706 and market power that would adversely harm competition and consumers.
Statements from the hearing revealed that some judges did not believe that the FCC counsel had sufficiently proven that section 706 provided the FCC with the authority to regulate broadband. Section 706 is deregulatory and mandates a report on broadband deployment and gives the FCC the ability to remove regulatory barriers to market entry. This section was not intended to expand the FCC’s jurisdiction beyond common carriers.
Furthermore, the FCC’s argument that Verizon has a level of market power that could adversely affect competition lacked sufficient evidence. The FCC did not perform a peer-reviewed study of the broadband market to corroborate these claims.
While the outcome certainly cannot be predicted, it appears that the court won’t be easily convinced that the FCC’s attempt to expand its own authority is legally sound.