WASHINGTON, D.C. – Broadband for America (BfA) – a coalition of more than 300 members – today released a new legal opinion by University of Pennsylvania Professor Christopher S. Yoo concluding that the Federal Communications Commission (FCC) has little hope of surviving a judicial test if it proceeds with announced plans to reclassify the Internet from a Title I information service to a Title II telecommunications service.

"As a legal matter, the language within the statutes enacted by Congress, the unbroken line of previous FCC decisions, and the reasoning behind the Supreme Court's decisions make the FCC's plans to subject the Internet to the regulatory regime created for the telephone system unlikely to survive judicial scrutiny," said Yoo, who is Professor of Law, Communications, and Computer & Information Science as well as the Founding Director of the Center for Technology, Innovation and Competition.

In explaining the debate over what is commonly known as reclassification, Yoo stated the courts have reined in the authority of the FCC by declaring that any actions that are not specifically authorized by the Communications Act of 1934 (as amended) "must be asserted in connection with some explicit grant of authority" in the existing language of the Act.

There is no "explicit grant of authority" in the current language.  Congress would have to step in and amend the law, according to Yoo.

Yoo states that since the earliest days of the Internet, the FCC has affirmed that it is an information service, not a transparent, point-to-point telecommunications service such as a traditional telephone system.  He also emphasizes the U.S. Court of Appeals’ conclusion that just because the FCC has ancillary authority over some aspects of broadband Internet access that "does not automatically give it jurisdiction over all aspects of that technology."

Given the enormous amount of intellectual and financial capital that have already been expended and are planned for the future expansion of the Internet, the more than 300 members of the Broadband for America coalition have expressed concern that the uncertainty over the FCC's announced plans may have serious and adverse effects on broadband access to the Internet, which is one of the few bright spots in an otherwise struggling economy.

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