FCC’s hand smacked over Internet power grab

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Adam Thierer
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      Adam Thierer

      Adam Thierer is the President of the <a href="http://www.pff.org/">Progress & Freedom Foundation</a> (PFF), a think tank in Washington, D.C. that studies the Internet and cyberlaw, the digital economy, media and communications policy, and free speech issues. Prior to joining PFF in 2005, Thierer spent four years at the Cato Institute as Director of Telecommunications Studies, and nine years at The Heritage Foundation as a Fellow in Economic Policy.

      Thierer is the author or editor of seven books on diverse topics such as media regulation and child safety issues, mass media regulation, Internet governance and jurisdiction, intellectual property, regulation of network industries, and the role of federalism within high-technology markets.

      Before coming to Washington, Thierer spent time in London, England at the Adam Smith Institute where he worked on reform of the British legal system. Adam earned his B.A. in journalism and political science at Indiana University, and received his M.A. in international business management and trade theory at the University of Maryland.

      Thierer is also a member of several distinguished task forces. He has served as a member of Harvard Law School’s Internet Safety Technical Task Force, a “Blue Ribbon Working Group” on child safety organized by Common Sense Media, the iKeepSafe Coalition, and the National Cable & Telecommunications Association, and he currently serves on the National Telecommunications and Information Administration’s “Online Safety and Technology Working Group.” He is also an advisor to the American Legislative Exchange Council’s Telecom & IT Task Force. In 2008, Thierer received the Family Online Safety Institute’s “Award for Outstanding Achievement.”

      Thierer blogs at <a href="http://techliberation.com/">The Technology Liberation Front</a> and his Twitter feed is: <a href="http://twitter.com/AdamThierer">http://twitter.com/AdamThierer</a>

Internet freedom got a reprieve Tuesday when the U.S. Court of Appeals for the District of Columbia slapped down a brazen attempt by the Federal Communications Commission (FCC) to ignore the rule of law and begin imposing onerous regulations on broadband network operators. The decision, Comcast v. FCC, deals with arcane matters of regulatory agency jurisdiction, but the stakes were profound and the ramifications for the future of the Internet will reverberate for years to come.

In a nutshell, the FCC argued it had the right to impose so-called “Net neutrality” regulations on a private broadband operator based merely on a handful of principles that the agency had previously said it would not be enforcing as law. Net neutrality regulations would put FCC bureaucrats in the Internet’s driver’s seat and let them determine what was “just and reasonable” of private networks. Critics have rightly feared that Net neutrality sounded all too much a Fairness Doctrine for the Internet since similar language had been used in the broadcast era to justify all sorts of FCC meddling and micromanagement.

Regardless, the FCC’s original position—that its Net neutrality principles were only principles and nothing more—made sense since even a high school civics student can tell you that only Congress can make laws. Moreover, for a brief time, even the FCC seem to realize that laws that would comprehensively regulate such an important sector of the American economy, as Net neutrality rules would, almost certainly require our elected leaders in Congress to reopen and tweak existing statutes like the Telecommunications Act of 1996. After all, Congress had never authorized wide-reaching regulation of the Net or broadband networks, and so, if the agency wanted to extend its regulatory tentacles and wrap them around the Internet it only seems reasonable they get the blessing of lawmakers before doing so. And, for a time, the FCC stuck to a “Hands Off the Net” approach.

Regrettably, the FCC decided to ignore that earlier logic, throw statutory authority to the wind, and instead concoct creative interpretations regulatory authority via something know as “ancillary jurisdiction.” To simplify things greatly, the agency has some leeway under existing laws to use various clauses of previous congressional enactments to regulate the sectors and technologies it oversees. In this case, the FCC claimed that it had “ancillary jurisdiction” to enforce amorphous Net neutrality policy principles against Comcast under past case law or, more amazingly, via some of the deregulatory-minded passages from the Telecom Act of 1996. It was an astonishing display of bureaucratic hubris that flaunted the rule of law and asked the courts to essentially look the other way while the agency magically invented its own authority to act and expand its powers.

But the U.S. Court of Appeals for the District of Columbia (the D.C. Circuit) was not about to turn a blind eye. In fact, this particular appeals court has been a near constant pain in the keister for the FCC since the agency’s regulatory shenanigans are frequently brought before the court and just as frequently struck down as over-zealous, unconstitutional exercises of power.

In yesterday’s Comcast decision, the D.C. Circuit calmly but meticulously decimated each and every twisted rational that the FCC set forth in defense of its Internet power grab. Paraphrasing an earlier Supreme Court decision, the court noted that the FCC’s decision, not only “strain[ed] the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts,” but sought to “shatter them entirely.” More profoundly, the court noted that “Were we to accept [the agency’s] theory of ancillary authority, we see no reason why the Commission would have to stop there, for we can think of few examples of regulations that apply to [] common carrier services, [] broadcast services, or [] cable services that the Commission… would be unable to impose upon Internet service providers.”

In other words: Stop right there FCC! This is exactly what courts should be doing when rogue regulatory agencies run well afoul of their statutorily-defined limits, but all too often agencies get a free pass instead in the name of “agency deference.” Luckily that didn’t happen this time around thanks to the D.C. Circuit.

The question now is whether the FCC learns its lesson — that it should seek the proper authority from Congress before it imposes new regulations like Net neutrality rules — or if the agency instead engages in another effort to concoct regulatory authority via regulatory re-classification. If the agency takes that latter approach and tries to pigeonhole the Internet and broadband services into the public utility regulatory models of the past, it will set the stage for Regulatory World War III. Lawsuits will fly. Some carriers have already promised as much.

When will the agency accept the fact that it is not above the law and that there is a right way in a democracy to go about changing policies that have such a profound impact on our economy? Regardless of what one thinks of the recent health care bill, imagine if the Department of Health and Human Services would have tried to ram it through as a regulatory scheme instead of having Congress debate it and vote on it. People would have been outraged. And yet that’s exactly what the FCC is proposing to do when it comes to Net neutrality regulation and regulatory reclassification of the Internet as sleepy public utility. You know, because public utility regulation has worked soooo well in other contexts!

The D.C. Circuit’s decision yesterday should encourage the Commission to pause and reconsider its current approach. Unfortunately, it’s more likely that the agency will instead retrench and fight on in a futile attempt to take the law into its own hands and ignore the will of Congress. For the sake of Internet freedom, we have to hope the courts will continue to hold the line against such shameless regulatory overreach. And if Congress does use this as an opportunity to reopen the Telecom Act, they should tightly limit the powers of the FCC and make a strong stand in defense of Internet freedom.

Adam Thierer is President of The Progress & Freedom Foundation in Washington, D.C.

  • http://www.facebook.com/people/Donna-Fallis/1173604605 Donna Fallis

    And still the liberals rage that it has nothing to do with what Snowe and Rockefeller were attempting to do, last year, but the party of “no” wanting to keep the power in corporate control (supposedly evil companies). If the FCC were to have it’s way, the internet would be controlled/patrolled by internet thugs that busted anyone that had an opinion that varied from the modern-day philosophical mania that is sweeping out of control under this administration. We all know that Fox News would be the first to go. I’m not in-favor of giving unregulated power to any government arm/agency of this administration.

  • Lochness71

    This article really does not address the real issue. It just reports the court case findings and it does that poorly. Here is a more concise summary for both sides. http://en.wikipedia.org/wiki/Network_neutrality

  • blacula

    Remember the Conservative outrage when Clinton signed a internet censorship bill? Yeah, me neither.

  • badmotherfarker

    Comcast is seeking to IMPOSE its own censorship. Is corporate censorship over tax payer subsidized infrastructure better or worse than government censorship? In this case… and RARELY… the FCC is actually acting in our interests. Comcast wants the right to limit access via the infrastructure to internet sites it does not like. Here’s 2 solutions:

    1) comcast builds lines without tax subsidies

    2) I have a CHOICE on my provider, which I currently don’t.

    Until then, net neutrality is a necessity.

  • badmotherfarker

    So tax payers get to subsidize comcast infrastructure yet comcast does NOT have to let ALL internet sites compete freely over those lines?? Do you people even understand what you’re arguing? I HATE the FCC, but loss of net neutrality is NOTHING to be cheered.

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