The Free State Foundation, TechFreedom, the Competitive
Enterprise Institute and the Cato Institute filed a brief Monday in U.S. Court
of Appeals for the D.C. circuit supporting the challenge to the FCC's network
brief says the rules are unconstitutional in two ways, as both a violation
of speech rights and of property rights, which would the First and Fifth
"However noble the FCC's intentions, its network-neutrality
regulation, Preserving the Open Internet (â€˜the Order'), benefits content
providers at the expense of broadband providers' constitutional rights,"
they write, adding that the FCC order serves no compelling government interest
since it addresses harms that even the FCC concedes are theoretical.
The rules went into effect last fall, and FCC chairman
Julius Genachowski has said that there have not been complaints about
violations of those rules to date.
"For many years, I argued that it would be unwise as a
matter of policy for the FCC to adopt net neutrality regulations. At the same
time, I also argued that the FCC's action would be unlawful, even
unconstitutional," said Free State Foundation president Randolph May.
"This amicus brief explains clearly why this is so, and I am optimistic
the court will find it persuasive."
The groups also argue that the FCC's assertion of ancillary
authority to impose the rules "arrogates a boundless, and therefore
dangerous, amount of power to itself."
The court will be collecting briefs from the parties into
the fall, with a decision not expected until sometime in 2013.