Berninger: The OIO and Its Chevron Deference Cannot Create a Federal Computer Commission to Regulate the Internet

by Mike Wendy on August 13, 2018

I was able to catch up with Daniel Benringer to discuss his petition before the Supreme Court, Berninger v. FCC, which seeks to overturn on constitutional grounds the previous FCC’s Open Internet Order (a.k.a. Net Neutrality Order). Right now, SCOTUS is considering whether to take that challenge. Among other things, Berninger asks: Can Chevron Deference essentially create a new agency – a Federal Computer Commission to regulate the Internet? Berninger believes it cannot and hopes SCOTUS agrees.

The following is a transcription (below) of the attached video.

Daniel Berninger: I’m pursuing something that I call “Hello Digital,” which is to put voice services behind websites. So, when you go to a website you think you’re alone, and today you traverse the Internet as far as you know you’re alone. But, no, in fact lots of people are showing up at that same website. So, we allow people to click through, get an operator, and the operator plays matchmaker. And, the next thing you know you’re talking to the person that’s reading about Syria in the New York Times, or whatever. It would be an entirely new way to create a conversation. A new way to discover people that care about the same things that you care about. And, it would presumably create a lot more conversations. But government’s decided in their infinite wisdom that, no, that’s illegal.

One of the effects of this was immediately to wipe out all my funding sources because no one will invest in a project that requires “Mother may I” with government. So, the question is: “Are entrepreneurs allowed to pursue these projects”? And as of 2015, no. That I need to go and explain what I’m doing to the FCC and they give me a green light or not.

For 20 years, they’ve been trying to find a way to regulate the Internet and in what context. They’ve tried a bunch of different theories and they’ve failed. Now with the case that’s presently before the Supreme Court of which I am the named plaintiff, Berninger v. FCC, we’re finally going to find out whether or not the government can regulate the Internet and under, presently, the theory of Chevron Deference. Can Chevron Deference essentially create a new agency – a Federal Computer Commission? I feel like it cannot.

They’ve essentially thrown a bunch of things at the wall to see what sticks. But the bottom line is that the existence of the FCC, based on a 1934 law, and as revised in 1996, so the jurisdiction as defined by Congress, none of that addresses or says the FCC can regulate the Internet. Essentially, we’re in this kind of position two wrongs doesn’t make a right. That the Restoring Internet Freedom Order cannot moot the previous Order because both are wrong. And, in particular, the question of Title II, that is, layering on the entire telecom regulation on the Internet, is only addressed in the Open Internet Order. So, if they are able to moot the previous challenge, then we’ll never know whether or not Title II is legal or is constitutional.

So, I’m pressing ahead with Berninger v. FCC to ask that question: Is it possible that Chevron Deference is able to create a whole new agency – a Federal Computer Commission? And, in particular, can Title II be layered on top of the Internet just on the FCC’s say-so.

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