TechFreedom Could Back Net Neutrality Legal Challenge if FCC Acts Before Congress

adopt reclassification before Congress acts. Wheeler plans to circulate a net neutrality order in February with the aim of a vote at the Feb. 26 commission meeting (see 1501020035). Wheeler could be “bluffing,” Szoka said in the email. Thinking he “held a weak hand legally” with a Title II approach, Wheeler could be advancing the prospect of a February decision to push Congress to come up with a legislative solution, Szoka said. A “legislative compromise” would focus “on real threats to competition while constraining the FCC’s discretion,” the post said. Meanwhile, two recent studies, considered together, “provide theoretical and empirical evidence that Title II regulations would depress broadband investment,” the Free State Foundation said in a blog post Tuesday. The post cited a November study by Kevin Hassett, director-economic policy studies and resident scholar at the American Enterprise Institute, and Sonecon Chairman Robert Shapiro, predicting a Title II approach would reduce broadband investment by 12.8 to 20.8 percent. The post also cited a Progressive Policy Institute study that said reclassification would lead to $15 billion more nationally in state and local taxes (see 1412150053). Title II proponents have disputed the PPI study (see 1412190040). The commission shouldn't rule out any legal options, including supplementing Title II with Section 706, the Internet Association wrote in a letter to the agency, posted in docket 14-28 Tuesday. If the commission takes a Title II approach, it would be legally defensible because circumstances have changed since the agency classified broadband as an information service, the letter said. Consumers no longer see broadband as part of a bundle of information services, but as a way of “accessing content of their choosing without impediment or discriminatory treatment.” The commission also has learned it doesn't have sufficient authority under Section 706, the association said.