Berninger v. FCC: Vacate the Open Internet Order as Unconstitutional Violation of First Amendment

"It is a violation of the First Amendment to the United States Constitution for Government to pretend - as the Federal Communication Commission does in the Open Internet Order - the First Amendment does not exist."
Daniel Berninger, founder, VCXC,

Daniel Berninger serves as the lead plaintiff in Daniel Berninger, et al v. Federal Communications Commission, et al petitioning the United States Supreme Court to restore First Amendment rights for American citizens in cyberspace - speech, press, religion, assembly, and petition. The petition addresses the February 26, 2015 Open Internet Order implemented by the Obama Administration FCC as an Orwellian inversion of the First Amendment presuming authority to insert Government as referee of free speech on the Internet.

"The FCC’s 2015 net neutrality rule is one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States." Circuit Judge Brett Kavanaugh, United States Court of Appeals for the District of Columbia Circuit

The First Amendment prohibits government interference with the means citizens use to organize. This uniquely American constraint on government reflects the direct experience of the abuses of power motivating the founding. There exist no other country with an equivalent tradition or inclination to advocate for unfettered communication between citizens as an inherent right. The Obama Administration rules downgrade this inherent right to mere privilege the Federal Communication Commission presumes discretion to rescind. As daily life moves online, the failure to recognize and preserve the First Amendment dooms the American Experiment for the same reasons as in 1776. Granting government control over communication forecloses the possibility of a government accountable to the citizenry.

The Supreme Court represents the last line of defense for preserving First Amendment in cyberspace and the dream John Perry Barlow famously articulates in 1997 via The Declaration of Independence of Cyberspace. The Court of Appeals for the District of Columbia Circuit already endorsed the assertion by the Federal Communication Commission of an equivalence between telephone numbers and IP addresses serving as the means to bring the information technology sector under the jurisdiction of the FCC. The decision ends the massively successful and long-standing policy leaving information technology beyond the reach of regulators as per the terms of the AT&T Consent Decree in 1956 and dozens of decisions over the subsequent 60 years by all three branches of government. No one disputes the evidence of a flourishing information technology sector or the fact of a 1000-fold expansion of capacity and services since the privatization of the Internet in 1996. Champions of Internet regulation assert via the Open Internet Order and an embarrassing non-sequitur the urgency of Government regulation to preserve the benefits of non-regulation. The 80-year track record of the Federal Communications Commission includes no examples of success along the lines advocates imagine for rules signed by Franklin Delano Roosevelt in 1934.

The imperative of recognizing First Amendment rights online flows from the movement of speech, press, religion, assembly, and petition to the Internet. The hand-waving by the FCC Chairman disavowing plans to use the new authority does nothing answer the loss of these inherent rights. The newly claimed Internet regulatory powers convey an arbitrary and kingly prerogative without limit against artificial and politized distinctions between end users, edge providers, and ISP's. Adhoc agenda driven distinctions associated with transient and evolving technologies do not invalidate the First Amendment. There exist nothing in the Telecommunications Act of 1934 granting authority over the Internet. The regulations pre-date the transistor not to mention computing and networking. The various speculations advocates for Internet regulation offer do not overcome the long and unbroken track record of government as the enemy of communication between citizens.

The regulatory powers the Obama Administration claim over the Internet in the February 26, 2015, Open Internet Order include no limits at all. There exist no means to reconcile the Open Internet Order with Reno v. ACLU where all nine justices of the Supreme Court voted in favor of vacating the CDA and FCC regulation of the Internet as overly broad and prior restraint against First Amendment rights. If the new rules survive the Daniel Berninger v. FCC challenge at the Supreme Court, the prior Reno precedent disappears as the government of the United States joins the ranks of other governmental censors. The betrayal of James Madison and ending two centuries of tradition holds easily observable dire consequences as per the example the usually routine authority most governments impose on communication between citizens. Sustaining the unique respect for First Amendment protections in America requires charting path different than the attempts at top-down control of online activities in every other country in the world. The Internet represents a new frontier and new opportunity to demonstrate the merits of the American Experiment in the 21st century.


Berninger v. FCC Timeline

Daniel Berninger's 25-year journey in defense of the First Amendment online starting at AT&T Bell Laboratories in 1991 reaches the Supreme Court in 2018 as the culmination of hundreds of events. The timeline below lists the last few steps in this journey leading up to the challenge of the FCC's February 26, 2015, Open Internet Order at the Supreme Court. Additional pointers at the end of the timeline identify key precursor events around the work on Internet voice startups Free World Dialup, ITXC, Vonage, and Hello Digital as well as other initiatives preserving the non-regulatory status of the Internet.

Timeline (with links to documents)

Daniel Berninger, et al v. FCC, et al:

Daniel Berninger

  • January 23, 2015: Comment in opposition to the Open Internet Order
  • April 27, 2015: Request FCC Stay of Open Internet Order
  • April 27, 2015: Daniel Berninger Declaration
  • May 19, 2015: Motion for Stay at Court of Appeals for DC Circuit
  • May 21, 2015: Joint Opposition Motion to Dismiss
  • July 30, 2015: Opening Brief in Appeal of Open Internet Order
  • October 5, 2015: Reply Brief in Appeal of Open Internet Order
  • Links below for Oral Argument audio on December 4, 2015. A Request for Rehearing En Banc eventually gets denied on May 1, 2017 (link below) which opens the 90 day window for Cert Petitions.
  • July 10, 2017: Request 60 Day Extension Supreme Court Certiorari Petitions
  • September 27, 2017: Petition for Grant of Writ Certiorari
  • September 27, 2017: Cert Petition Service List
  • (Pending) Reply Brief in Petition for Grant of Writ Certiorari
  • Federal Communications Commission

  • February 26, 2015: Open Internet Order
  • May 8, 2015: Denial Request to Stay Open Internet Order
  • May 8, 2015: Motion to Dismiss
  • June 1, 2015: Reply Petitioners Opposition to Motion to Dismiss
  • May 22, 2015: Opposition Request for DC Circuit to Stay Open Internet Order
  • Sepember 14, 2015: Brief for Respondents in Review of Open Internet Order
  • October 25, 2017: Request for 30 Day Extension of Reply Brief Supreme Court
  • Court of Appeals District of Columbia Circuit
    (Docket:15-1128 consolidated with 15-1063)

  • June 11, 2015: Denial Request for Stay Open Internet Order
  • June 19, 2015: Briefing Schedule, Consolidation of Cases
  • October 27, 2015: Schedule of Oral Argument
  • December 4, 2015: Audio Recording Oral Argument - Issue I
  • December 4, 2015: Audio Recording Oral Argument - Issue II-IV
  • June 14, 2016: Panel Majority Opinion Judge Tatel and Judge Srinivasan
  • June 14, 2016: Dissent by Senior Judge Stephen Williams
  • May 1, 2017: Denial Request for Rehearing En Banc
  • May 1, 2017: Dissent by Judge Janice Brown
  • May 1, 2017:Dissent by Judge Brett Kavanaugh
  • Supreme Court United States (Docket: 17-498)

  • (Expected February 2018) Order Granting of Writ Certiorari
  • Additional Petitions for Grant Writ of Certiorari

  • September 28, 2017: AT&T
  • September 28, 2017: ACA
  • September 28, 2017: CTIA
  • September 28, 2017: NCTA
  • September 28, 2017: Tech Freedom
  • September 28, 2017: USTelecom and CenturyLink
  • Supporting Amicus Briefs for Grant Writ of Certiorari

  • November 2, 2017: Judicial Watch and Allied Educational Foundation
  • November 2, 2017: CEI, Reason Foundation, Cato, Individual Rights
  • November 2, 2017: International Center for Law and Economics
  • November 2, 2017: Pacific Legal Foundation
  • 25 Years Leading to Supreme Court Challenge

  • August 15, 1995: Founding Free World Dialup
  • April 15, 1996: Grand Hyatt Policy Conference on Title II Regulation of Internet
  • February 6, 1996: Vocaltec Communications
  • September 4, 1997: NTIA Forum on Internet Telephony
  • October 15, 1997: Founding VON Coalition
  • November 1, 1997: Founding ITXC
  • July 1, 2001: Founding Vonage
  • February 12, 2004: Pulver Order: Declarative Ruling FWD Information Service
  • Starting April 6, 2009: HD Voice Summits
  • November 11, 2011: Founding VCXC
  • June 15, 2012: IP Transition as Grand Challenge
  • December 10, 2013: First Multi-Operator HD Voice Call
  • May 23, 2014: VCXC Petition for Notice of Inquiry HD Voice Migration
  • January 6, 2015: Founding Hello Digital
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