JW amici brief FCC Net Neutrality 498
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Nos. 17-498, 17-499, 17-500, 17-501, 17-502, 17-503, 17-504 THE Supreme Court the United States _________ DANIEL BERNINGER, al., Petitioners, FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES AMERICA, Respondents. _________ Petitions for Writs Certiorari the United States Court Appeals for the District Columbia _________ BRIEF AMICI CURIAE JUDICIAL WATCH, INC. AND ALLIED EDUCATIONAL FOUNDATION SUPPORT PETITIONERS _________ Chris Fedeli Counsel Record JUDICIAL WATCH, INC. 425 Third Street Washington, 20024 (202) 646-5172 cfedeli@judicialwatch.org Counsel for Amici Curiae Dated: November 2017 LEGAL PRINTERS LLC, Washington 202-747-2400 legalprinters.com TABLE CONTENTS TABLE AUTHORITIES ...................................... INTERESTS THE AMICI CURIAE .....................1 SUMMARY ARGUMENT.....................................4 ARGUMENT ...............................................................6 This Case Important Because Internet Overregulation Will Damocles Sword Over the U.S. Economy Until Resolved This Court. ..........................................................6 II. This Case Important Because This Court Must Clarify the Major Rules Doctrine Protect Separation Powers ..........................10 III. This Case Important Because the Court Must Restore the APA Requirement That Agencies Provide Genuinely Sound and Accurate Reasons for Regulatory Actions ........15 CONCLUSION ..........................................................21 TABLE AUTHORITIES CASES Chevron U.S.A., Inc. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) .........................5 District Columbia Heller, 554 U.S. 570 (2008).............................................18 Motor Vehicle Mfrs. Ass State Farm Mut. Ins., 463 U.S. (1983) ..................... 15-17 National Cable Telecomms Ass Brand Internet Services, 545 U.S. 967 (2005) ...............13 Patel Tex. Dep Licensing Regulation, 469 S.W.3d (Tex. 2015) .................................18 Reno ACLU, 521 U.S. 844 (1997) ............................7 United States Telecom Ass FCC, 825 F.3d 674 (D.C. Cir. 2016) ............. 16, 17, United States Telecom Assn FCC, 855 F.3d 381 (D.C. Cir. 2017) .........................2, Utility Air Regulatory Group EPA, 134 Ct. 2427 (2014).....................................5, Verizon FCC, 740 F.3d 623 (D.C. Cir. 2014) .............................................14, iii STATUTES AND REGULATIONS U.S.C. 153(24).............................................. 11-13 U.S.C. 153(53).............................................. 11-13 U.S.C. 201 ..........................................................18 U.S.C. 1302 ........................................................14 C.F.R. 8.9 .............................................................7 C.F.R. 8.11 ...........................................................8 OTHER AUTHORITIES Cass Sunstein, CHEVRON STEP ZERO, Va. Rev. 187 (2006) ...................................................14 Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer (Jul. 2009), https://www.americanbar.org/content/dam/ aba/publishing/communications_lawyer/ fedeli.authcheckdam.pdf ...............................9, Christopher Yoo, NETWORK NEUTRALITY INTERNET INNOVATION?, Regulation, Vol. 33, No. (Spring 2010), https://object.cato.org/sites/cato.org/files/serials/ files/regulation/2010/2/regv33n1-6.pdf ...............7 Comments Judicial Watch, Inc. and the Allied Educational Foundation, Restoring Internet Freedom, Docket 17-108, FCC (filed July 17, 2017), http://www.judicialwatch.org/wpcontent/uploads/2017/07/FCC-comments-netneutrality.pdf ......................................................18 Gerald Faulhaber, THE ECONOMICS NETWORK NEUTRALITY, Regulation, Vol. No. (Winter 2011-12), https://object.cato.org/sites/cato.org/ files/serials/files/regulation/2012/6/ v34n4-4.pdf ...........................................................2 Gerald Faulhaber and Christiaan Hogendorn, THE MARKET STRUCTURE BROADBAND TELECOMMUNICATIONS, Journal Industrial Economics, Vol. 48, No. (2000) .........................2 Justin (Gus) Hurwitz, TWO SIDES THE INTERNET TWO SIDEDNESS: CONSUMER WELFARE PERSPECTIVE, Perspectives from FSF Scholars, Vol. No. (Sept. 30, 2013), www.freestatefoundation.org/images/Two_Sides_ of_the_Internet_s_Two-Sidedness__A_Consumer_Welfare_Perspective_ 092713.pdf ..........................................................19 Stuart Brotman, Creating economics-sensitive zone the FCC, Brookings Institute (May 25, 2017), www.brookings.edu/blog/techtank/ 2017/05/25/creating-an-economics-sensitivezone-at-the-fcc.....................................................16 INTERESTS THE AMICI CURIAE Judicial Watch, Inc. Judicial Watch nonpartisan educational foundation that seeks promote transparency, integrity, and accountability government and fidelity the rule law. Judicial Watch regularly files amicus curiae briefs advance its public interest mission and has appeared amicus curiae this Court many occasions. The Allied Educational Foundation AEF nonprofit charitable and educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverse areas study. AEF regularly files amicus curiae briefs advance its purpose and has appeared amicus curiae this Court many occasions. Amici are broadly concerned that the U.S. Court Appeals for the Circuit gave administrative agency like the Federal Communications Commission extended future powers destroy enormous amounts national wealth reclassifying and regulating broadband internet service. long the FCC has this power, will prone abuse with dangerous and politically-corrupted decisions like the one under Amici state that each the Petitioners and Respondents have given their consent writing the filing this amicus brief. counsel for party this case authored this brief whole part, and person entity other than amici and their counsel made monetary contribution intended fund the preparation and submission this brief. appeal.2 The result will constant risk damage major portion the American economy and simultaneous increase wasteful rent-seeking behavior and agency lobbying.3 Amici are additionally concerned that unless this Court acts rein unchecked administrative state, federal separation powers doctrine will badly undermined. The FCC reclassification power blessed the Circuit represents the expansion Chevron doctrine beyond anything ever intended this Court. Accordingly, the potential harm even greater than the risk the vibrant sector the economy that the internet and the continued growth and expansion this valued platform for civic communication. The harm that the Circuit has United States Telecom Assn FCC, 855 F.3d 381, 409-411 (D.C. Cir. 2017) (reh banc denied) (Brown, J., dissenting) Why, the verge announcing new Open Internet Order 2014 that both implemented net neutrality principles and preserved broadband Internet access information service, would the FCC instead reclassify broadband Internet access public utility?... [T]he President intervention into the FCC deliberations was outcome determinative (internal citations and punctuation omitted). Gerald Faulhaber, THE ECONOMICS NETWORK NEUTRALITY, Regulation, Vol. No. (Winter 2011-2012), When regulators are open for business, firms understand that pleasing manipulating the regulators far more important than innovating, investing, and pleasing customers. precisely because regulators have not been open for business the Internet that has been such innovative and successful enterprise. (quoting Gerald Faulhaber and Christiaan Hogendorn, THE MARKET STRUCTURE BROADBAND TELECOMMUNICATIONS, Journal Industrial Economics, Vol. 48, No. (2000)), available https://object.cato.org/sites/ cato.org/files/serials/files/regulation/2012/6/v34n4-4.pdf. undermined the separation powers outlined the first three articles the Constitution, which require Congress make laws and establish policy with executive enforcement and judicial review. Chevron has now expanded the point where the executive branch makes policy, the judiciary approves rejects that policy, while Congress happily abdicates its authority and avoids all resulting political accountability. This exactly the opposite what the framers intended, greatly reduces the power the most democratically-accountable branch government and the only branch designed foster genuine political compromise. With all laws decided executive with little need compromise and passed judiciary where compromise inimical its very nature, the nation deprived lawmaking deliberative body that can only act when negotiates and builds consensus between the many diverse stakeholders any public debate. Without Congressional compromise, the nation further deprived 535 members Congress who can return their states and districts following compromise legislation and explain their constituents why the law was the best interest the nation. Instead, members Congress can endlessly avoid accountability, and instead may pass the buck and blame the nation problems out-of-control Presidents out-ofcontrol federal courts. The result this blurring the separation powers that political compromise ever reached, various factions just become further entrenched into increasingly hostile positions. abandoning our constitutional system government, are left with system where parties compete aggressively for the only political prize remaining the White House and then take turns maximizing their success capturing that branch implementing many overreaching executive actions possible. Once the opposition party retakes the Presidency, the new party undoes all the executive actions the previous administration and the cycle repeats itself. This turns the federal government into mere battlefield endless policy war attrition. This Court must rein Chevron protect the founders intent creating three separate branches government, forcing Congress back into its proper role the deliberative legislative branch which decides the nation major rules and policies through negotiation and compromise. For these and other reasons set forth below, amici urge the Court grant the pending petition for certiorari. SUMMARY ARGUMENT The Circuit grant unchecked power the FCC heavily regulate the broadband internet industry whenever politically expedient extremely dangerous, and grant certiorari important for multiple reasons. First, this decision risks enormous harm the future growth the internet, which turn constitutes massive risk the U.S. economy. Beyond that risk, this precedent must overturned prevent the limitless expansion the administrative state the point where the separation powers outlined the first three articles the Constitution rendered meaningless. This Court should reverse the illegal Circuit decision and properly explain Chevron limits this case. Chevron U.S.A., Inc. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Specifically, this Court should find the FCCs Order violated either the Major Rules Doctrine Utility Air Group the arbitrary and capricious standard the Administrative Procedure Act explained State Farm. Utility Air Regulatory Group. EPA, 134 Ct. 2427, 2444 (2014); Motor Vehicle Mfrs. Ass State Farm Mut. Ins., 463 U.S. 29, (1983). This case especially important because the FCC Order violated both doctrines, and the Circuit improperly ignored both. result, the judiciary blessing Congress evasion its constitutional responsibility make laws. This will lead the executive branch continue usurp this authority with bolder and more inventive interpretations decades-old statutes until eventually all real lawmaking power will lie the executive and the judiciary. This inherently unstable situation that poses great danger the American system governance. ARGUMENT This Case Important Because Internet Overregulation Will Damocles Sword Over the U.S. Economy Until Resolved This Court The internet accounts for substantial portion the U.S. economy, and even larger percentage the growth the economy over the last years. the Circuit decision stands, the FCC will continue have absolute power untold damage the U.S. economy whenever the political winds shift. Even the FCC repeals the Order question later this year, the risk these dangerous regulations returning once the White House changes hands again too great for this Court ignore. The prospect these harmful rules returning amounts Sword Damocles hanging over the U.S. economy. This Court should grant certiorari end this uncertainty. The modern internet economy does not even closely resemble that the telephone network, which was never used for both one-to-one communications and mass media communications this scale. This makes the FCC reinterpretation the statute even more unreasonable. The economics networks that primarily serve one-to-one purpose and those that also serve one-to-many model are dramatically different.4 Indeed, the internet variable-use nature what makes such priceless economic asset, services and applications can start out with small audience and then can scale become global. This also what makes the internet invaluable civic life the most participatory form mass speech yet developed. Reno ACLU, 521 U.S. 844, 863 (1997). Any regulations for the internet must therefore flexible enough accommodate all its distinct uses without damaging any part it. The Circuit decision grants the FCC massive powers intervention the broadband internet economy which were never blessed Congress. Consider just two the regulations the FCC adopted its Order with its reclassification authority. First, the FCC flatly outlawed the market for internet traffic prioritization, which prevents broadband providers from recovering the costs network expansion from those web services putting the greatest demand the network.5 C.F.R. 8.9. This ban will result less capital for network capacity expansion, which means slower network See Christopher Yoo, NETWORK NEUTRALITY INTERNET INNOVATION?, Regulation, Vol. 33, No. 28, (Spring 2010) (discussing dissimilar network economic effects telephone networks and broadcast television networks), available https://object.cato.org/sites/cato.org/files/serials/files/regulation/ 2010/2/regv33n1-6.pdf. Id., [P]reventing network providers from exercising pricing flexibility would simply increase the proportion the network costs that providers must recover directly from end users. This simultaneously raises the prices paid consumers and decreases the likelihood that the capital improvements will ever built. expansions, which turn will result longer wait times before the next innovative, bandwidthintensive edge application can reach market scale. Outlawing market traffic delivery speed also kills incentives for websites and application providers the edge the network develop further technological innovations their own: [P]ricing for extra speed would incentivize edge providers innovate technologies that enable their material travel faster (or reduce latency jitter) even the absence improved ISP technology.... Thus paid prioritization would yield finely tuned incentives for innovation exactly where needed relieve network congestion. These innovations could improve the experience for users, driving demand and therefore investment. United States Telecom Ass FCC, 825 F.3d 674, 763 (D.C. Cir. 2016) (Williams, J., dissenting). Far from preserving openness and facilitating increased innovation and investment, the FCC prioritization ban will therefore send the internet into downward spiral. Similarly, the FCC internet conduct rule chills broadband providers ability adopt new network management policies, which virtually ensures that websites and application providers will use network bandwidth less efficiently. C.F.R. 8.11. This rule gives the FCC flexible standard judge what and not reasonable network management case-bycase basis. Giving this unchecked power the FCC essentially means innovation network operators will grind halt, the internet becomes mother may economy the center core the network. This turn means bandwidth efficiencies are created more slowly, and therefore websites and services the edge the network must wait longer before capitalizing increased bandwidth availability reach customers. Placing prior restraints broadband providers technological innovation will also dramatically reduce incentives for the edge providers themselves develop technologies for efficient transmission data.6 Again, the FCC overbearing rules will drastically slow the internet historic cycles innovation and investment. Preserving the cycle internet growth and investment requires innovation both the edge and the core the network. the core remains unchanging public utility where network management innovations are subject federal approval, the edge should not bother developing the next generation more bandwidth-intensive applications because the core will never able transmit them effectively nor will broadband Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer 31-32 (Jul. 2009) allowing such practices, network operators can increase speed traffic delivery based how much effort the traffic itself... makes ease congestion through steps they can take little cost. This highly efficient network management principle https://www.americanbar.org/ content/dam/aba/publishing/communications_lawyer/fedeli. authcheckdam.pdf. providers have much incentive make the needed improvements. Accordingly, the Circuit has effectively granted the FCC the power freeze major portion the U.S. economy and declare zero-growth zone whenever the populist winds demand it. This Court should not hesitate now reverse the Circuit infelicitous decision and restore certainty that the internet economy will continue experience healthy growth and expansion. II. This Case Important Because This Court Must Clarify the Major Rules Doctrine Protect Separation Powers urgently important for this Court accept review and clarify the Major Rules Doctrine now, rather than some future time. recent years, the federal government has strayed further towards making the executive branch the primary seat policymaking rather than Congress, diverging from the intent the founders. the Court allows regulatory agencies assume such broad powers change the law without explicit Congressional directive the FCC did with the Circuit blessing then Congress will free abdicate its legislative responsibilities favor rule executive. The harms the nation from this sub rosa realignment federal political power are potentially enormous. When the most democratic and popularly accountable branch government permitted cede its responsibility make policy the executive branch, the opportunities for compromise and lasting deal-making federal lawmaking are dramatically reduced. Instead, the Congressional system designed the founders will replaced with executive system where the political parties endlessly vie for the White House and, once successful, strive only undo and reverse all the executive regulatory legislation enacted the predecessor party. This Major Rules case therefore presents the Court with unique opportunity put end Congress recent neglect its constitutional duties. Congress wants agencies make far reaching and sweeping decisions that can jolt massive segments the economy, must say particularly clearly the statute. this case, Congress had wanted give the FCC the power change regulatory treatment internet services back and forth from light heavy regulation depending what the FCC thought was good for the market consumers any moment, Congress would have spelled out the FCC authority so. For instance, Congress could have written market-based consumer-based definitions different kinds communications services into the statute instead the technology and service-based definitions Congress did write. U.S.C. 153(24), 153(53). The former kinds definitions will necessarily fluctuate external factors, when markets change when prices rise and competition disappears. But the latter kinds definitions are intrinsic the service itself, based the technology and the providers offering the communications service regardless external factors. Accordingly, this case falls outside Chevron doctrine and within the ambit the Major Rules Doctrine explained Utility Air Regulatory Group EPA, 134 Ct. 2427, 2444 (2014). The Circuit was wrong affirm the FCC 2015 decision reclassify broadband internet telecommunications service. The FCC reclassification flies the face the barest common sense when one considers that Congress created two statutory regulatory categories one for telephone communications networks, and one for computer communications networks and never gave the FCC the power treat one like the other. U.S.C. 153(24), 153(53). Functionally, this case different than the U.S. Department Agriculture decided reclassify fish beef under the relevant statutes because the cattle laws happen more suitable how the USDA wishes regulate the fisheries industry. Importantly, the Circuit upheld the FCC power not just interpret ambiguous statutory phrases but rewrite the Communications Act ways that are inconsistent with fact, would overthrow the Act structure and design. Utility Air Group, 134 Ct. 2442. The FCC claimed power unilaterally implement decision vast economic and political significance affecting significant portion the American economy. Id. Utility Air Group, this Court held that agencies may only issue such orders when Congress explicitly delegated that kind broad and expansive power agency statute. Id. The Major Rules Doctrine necessarily limits the application Chevron the instant case. One might tempted say turning Internet access into public utility obviously major question deep economic and political significance any other conclusion would fail the straight-face test. United States Telecom Assn FCC, 855 F.3d 381, 402 (Brown, J., dissenting). Importantly, the Brand court never applied the Major Rules Doctrine because that 2005 case the FCC had not imposed burdensome new regulations entire industry, but rather was announcing its refusal impose such regulations. National Cable Telecomms Ass Brand Internet Services, 545 U.S. 967 (2005). Judge Kavanaugh explained, the Brand Court did not have and did not consider whether classifying Internet service telecommunications service and imposing common-carrier regulation the Internet would consistent with the major rules doctrine. United States Telecom Assn FCC, 855 F.3d 381, 425 (D.C. Cir. 2017) (reh banc denied) (Kavanaugh, J., dissenting). Despite the Circuit majority reasoning, not especially difficult reconcile the Major Rules Doctrine with Brand this Court aware, the Brand decision applied Chevron the FCC 2002 interpretation Sections 153(24) and (53) the Communications Act. U.S.C. 153(24), 153(53) (providing technology based definitions telecommunications services and information services). Even assume that the Brand precedent gives the FCC the power reinterpret the Communications Act that broadband internet could either information service telecommunications service, the case bar would still different from Brand Specifically, the current Court would still need apply the Major Rules Doctrine separately from (or addition to) the traditional two steps Chevron. The Major Rules Doctrine has been referred Chevron Step Zero illustrate how should applied.7 Apart from the usual ambiguous statute, permissible interpretation analysis, the Court must consider whether the interpretation will amount major economic reordering entire industry, and so, whether Congress deliberately vested such massive power the administrative agency. Since the FCC authority adopt non-common carrier, light-touch net neutrality regulations had previously been upheld, the only reason for its Title reclassification was impose extreme command-andcontrol economic regulations entire industry. See Verizon FCC, 740 F.3d 623, 649, 651-658 (D.C. Cir. 2014) (upholding, under Chevron, the FCC authority lightly regulate information services under U.S.C. 1302). The massive economic impact without clear Congressional directive what runs afoul the Major Rules Doctrine not the simple statutory reinterpretation, which least hypothetically could lawful under Chevron and Brand Cass Sunstein, CHEVRON STEP ZERO, Va. Rev. 187, 236 (2006). III. This Case Important Because the Court Must Restore the APA Requirement That Agencies Provide Genuinely Sound and Accurate Reasons for Regulatory Actions The Court should also accept review rule the APA issues here for the same reason Major Rules review needed: properly protect the first three articles the Constitution and restore the balance power between the branches government. the arbitrary and capricious standard remains toothless that can satisfied with any mealymouthed excuse agency gives, Congress can avoid legislating and accountability indefinitely. Combined with the over-expansive Chevron doctrine, the administrative state overreach will therefore continue erode the powers once reserved for Congress. This Court should not continue allow this expansion executive power. Agency action arbitrary and capricious the agency has entirely failed consider important aspect the problem, offered explanation for its decision that runs counter the evidence before the agency, implausible that could not ascribed difference view the product agency expertise. Motor Vehicle Mfrs. Ass State Farm Mut. Ins., 463 U.S. 29, (1983). The FCC 2015 reinterpretation Section 153 the Communications Act was arbitrary not because differed from the FCC 2003 interpretation, but because the FCC made the decision regulate more heavily without offering explanation consistent with the evidence before the agency: [T]he Commission relied explanations contrary the record before and failed consider issues critical its conclusion the extent that the Commission justified the switch the basis new policy perceptions, its explanation the policy watery thin and self-contradictory. Having set forth the notion that paid prioritization poses threat broadband deployment the Commission then fails respond criticisms and alternatives proposed the record, clear violation the demands State Farm, 463 U.S. 43, 51. United States Telecom Ass FCC, 825 F.3d 674, 762 (D.C. Cir. 2016) (Williams, J., dissenting). The FCC either ignored casually distinguished reams economic evidence grounded accepted theory that outlawing market transactions and business practices will deprive the market growth, hurting both the internet and consumers. This was not mere difference opinion; the 2015 order amounts economics denialism the Commission.8 Furthermore, this not case where the FCC stated was willingly sacrificing innovation and growth the internet exchange for guaranteed See Stuart Brotman, Creating economics-sensitive zone the FCC, Brookings Institute (May 25, 2017) (the FCCs former chief economist described the Title net neutrality rulemaking one where fair amount the economics was wrong, unsupported, irrelevant. available www. brookings.edu/blog/techtank/2017/05/25/creating-an-economicssensitive-zone-at-the-fcc. equality internet access and cost. Such decision would unwise political choice amici view, but explanation would least square with the evidence the record and therefore satisfy the APA. Indeed, there may occasions where destroying national wealth legitimate political choice done the service some other important goal such paying for necessary government services, reducing wealth disparities avert social unrest. United States Telecom Ass FCC, 825 F.3d 674, 766 (D.C. Cir. 2016) (Williams, J., dissenting) [P]erhaps the Commission drawn its present stance because enables revel populist rhetorical flourishes The APA requirement that agencies identify such reasons forthrightly when they are the actual reasons for agency action. Instead, the FCC waived away established economic evidence and theory with its own set alternative facts deny that its decision would have any impact growth the internet economy. There point which such willful agency ignorance field knowledge crosses the line between difference opinion supported reason and arbitrary action pursuit unstated agenda. The FCC order crosses this line. Additionally, this Court further explained State Farm that the agency nevertheless must examine the relevant data and articulate satisfactory explanation for its action, which includes showing rational connection between facts and judgment... pass muster under the arbitrary and capricious standard. 463 U.S. 56. not this Court role accept whatever rationale the FCC offered for its decision uncritically, the arbitrary and capricious standard were mere rubber-stamp. Rather, this Court must examine the FCC stated reasons and, they not adequately account for the evidence, ask there were other unstated reasons for the decision. See e.g. District Columbia Heller, 554 U.S. 570, 628, fn. (2008) simple rational basis review meaningless only excludes pure irrationality); see also Patel Tex. Dep Licensing Regulation, 469 S.W.3d 69, 112 (Tex. 2015) (Willett, J., concurring) (judges must conduct genuine search for truth asking What government actually to? the agency reason proffered not the actual reason for the decision, the agency has avoided accountability and the decision therefore unlawfully arbitrary and capricious under the APA. The FCC stated goal protecting and promoting the open internet does not adequately account for its choice reclassify broadband under Title (47 U.S.C. 201 seq.) and impose heavyhanded public utility regulations when could have protected openness with light-touch, Title information service regulations. See Verizon FCC, 740 F.3d 623, 649, 651-658 (D.C. Cir. 2014).9 The economic evidence and analysis the record demonstrated quite persuasively that the prohibitions market transactions and business See also Comments Judicial Watch and Allied Educational Foundation, Restoring Internet Freedom, Docket 17108, FCC 17-60, pp. 11-16 (filed July 17, 2017) (providing examples light-touch net neutrality regulations that protect internet openness without imposing burdensome economic restrictions), available http://www.judicialwatch.org/wpcontent/uploads/2017/07/FCC-comments-net-neutrality.pdf. practices would gradually destroy billions dollars value. For instance, adopting the paid prioritization ban, the FCC failed adequately account for evidence the importance two-sided market for broadband internet, which draws vastly more capital into the broadband economy through ordinary market pressures and self-interested behavior.10 Furthermore, the Commission did not adequately account for evidence that the clear economic harm this regulation could have been mitigated applied more carefully: [T]he Commission adopted flat prohibition [on prioritization], paying attention circumstances under which specific varieties paid prioritization would (again, assuming market power) adversely favorably affect the value the internet all users. the absence such evaluation, the Order scathing terms about paid prioritization fall flat. United States Telecom Ass FCC, 825 F.3d 674, 766 (D.C. Cir. 2016) (Williams, J., dissenting). Similarly, the consumer protection rationale for the FCC Justin (Gus) Hurwitz, TWO SIDES THE INTERNET TWOSIDEDNESS: CONSUMER WELFARE PERSPECTIVE, Perspectives from FSF Scholars, Vol. No. (Sept. 30, 2013) [W]hy care market two-sided? Because most two-sided markets, the purveyor the intermediary goods that the two sides are consuming sets different prices for each side the market order maximize the value the market. www.freestatefoundation.org/images/Two_Sides_of_the_Interne t_s_Two-Sidedness_-_A_Consumer_Welfare_Perspective_ 092713.pdf. prioritization ban fails square with the evidence that two-sided market can serve even better price control system than federal regulations.11 Additionally, imposing the internet conduct regulation, the FCC reasoning does not account for the evidence that preventing broadband providers from adopting network management innovations will inevitably lead inefficient bandwidth use. This will turn delay foreclose the development more bandwidth-intensive applications and content delivery innovations, slowing growth major segment the economy.12 The FCC never owned the fact that was sacrificing all the above for internet openness, nor the fact that could have protected openness without sacrificing innovation and investment. The Court should now restate the law and prohibit agencies from unaccountable and opaque decisionmaking. Permitting this kind agency action only serves Id. ...the Open Internet rules, preventing Verizon from charging firms like Google and Netflix for access its network, prevent this market from behaving like two-sided market.... [A]llowing broadband ISPs charge content providers can benefit consumers and increase infrastructure investment. Chris Fedeli, CARPOOL LANES THE INTERNET: EFFECTIVE NETWORK MANAGEMENT, Comm. Lawyer (Jul. 2009) The Internet could evolve require stricter technical protocols for levels integrity and performance needed for delivery high speed and real-time applications like online gaming... [T]he FCC rules should allow network operators accommodate the kinds functions next generation Internet users may want. https://www.americanbar.org/content/dam/aba/publishing/com munications_lawyer/fedeli.authcheckdam.pdf. further insulate Congress from accountability for national policy while dangerously expanding the policymaking powers the executive branch. CONCLUSION For the foregoing reasons, amici respectfully request that the Court grant the petitions for writs certiorari. Respectfully submitted, Chris Fedeli Counsel Record JUDICIAL WATCH, INC. 425 Third Street Washington, 20024 (202) 646-5172 cfedeli@judicialwatch.org Counsel for Amici Curiae November 2017