TR Daily ‘Brand X’ Only Argument Needed to Defend RIF Order
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Monday, November 12, 2018

‘Brand X’ Only Argument Needed to Defend RIF Order

FCC General Counsel Thomas Johnson today suggested that the defense of the agency’s 2017 restoring Internet freedom (RIF) order against challenges at the U.S. Court of Appeals for the District of Columbia Circuit could be boiled down to “two words: Brand X” — a reference to a 2005 Supreme Court decision that upheld the FCC’s interpretation of cable modem services as information services.

At an event hosted by the Free State Foundation to discuss issues raised by its recently launched book, “A Reader on Net Neutrality and Restoring Internet Freedom,” Mr. Johnson joked, “I’m not actually advocating this as an oral argument strategy.”

He also said that the D.C. Circuit’s ruling “could be one paragraph as far as I’m concerned,” affirming the FCC’s action. Free State Foundation President Randolph May joked that the paragraph could also be two words: “Brand X.”

Mr. Johnson also rejected the argument that the FCC essentially vacated the field of broadband regulation, which has been put forth by those challenging the preemption provisions in the RIF order Commission decision to preempt. He said the FCC made “a conscious decision” to adopt light-touch regulation, rather than heavier, common carriage–style regulation.

He noted that the preemption ruling “hasn’t prevented states from attempting to impose net neutrality requirements, whether through executive orders and procurement power or through legislation and general regulation.”

Asked whether he sees the FCC’s preemption authority extended to states’ procurement decisions, Mr. Johnson said, “The Commission has not taken an explicit position on procurement executive orders.” He acknowledged that “those orders do present different questions than general regulations. … I think we need to look at them.”

Andrew Smith, director of the Federal Trade Commission’s Bureau of Consumer Protection, who emphasized that he spoke on his behalf, not that of the FTC or any individual Commissioner, noted that the FTC brought action against providers it said were throttling subscribers data in activity that occurred before the FCC’s 2015 open Internet order reclassified broadband Internet service as a common carrier service exempt from the FTC’s authority over unfair and deceptive business practices.

In response to a question about the ability of state attorneys general to pursue similar actions against broadband providers under state legislation known as Little FTC Acts, Mr. Smith said that “that’s not my department.” However, he added, “We frequently cooperate with the states. I don’t see why we couldn’t do that here” if activity triggered state and federal statutes. “If a state attorney general wants to bring action against an ISP under its own state law, I don’t have anything to say about that,” he said.

Mr. Smith also noted that several of the current FTC commissioners testified at an oversight hearing in favor of data security legislation that would give the FTC authority over telecoms and nonprofits, as well as providing civil penalty authority in data security cases. —Lynn Stanton, [email protected]

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