America’s communications industry comprises, like health care, roughly one-sixth of our economy. Unlike health care, however, which required majorities in Congress for sweeping new regulations, the Federal Communications Commission believes it can take over the communications system with just three votes of an unelected commission.
The FCC’s power grab was dealt a stunning setback this week in the D.C. Circuit Court of Appeals, who rejected the agency’s asserted authority to regulate the Internet. In a stinging 36-page decision, the court found the would-be regulators lacked any jurisdiction, saying: “We begin—and end—with Comcast’s jurisdictional challenge.” After a very weak showing from the FCC during oral arguments, Comcast was expected to win. But we didn’t know they would win this big.
It’s welcome news for weary believers in America’s free enterprise economic system—millions who have already seen more Washington takeovers since the 2008 financial crisis than in the previous history of the United States. Fortunately, as long as we have a free and open communications system, our country can correct itself. Indeed, we have seen an unprecedented uprising of grassroots Americans newly engaging in the political process over the past year, and it has been made possible by the open communication accessible in a privately owned Internet.
However, this is an ideological fight, and the true-believers on the left will not let it rest simply because of a little thing like the law. FCC Chairman Julius Genachowski, a close friend of Obama’s who has visited the White House dozens of times, is still pursuing Internet regulations at the direct request of the president, who infamously said, “I will take a back seat to no one in my commitment to network neutrality.” That apparently includes not taking a back seat to Congress, the American people, or the democratic process, because his effort is proceeding apace despite near-zero support in Congress, and now likely even in the face of an unambiguous defeat in our courts.
The FCC cannot simply invent its own authority to regulate the Internet, categorized in as a “Title I” information service. That’s now been tried. And it failed. Instead, the regulators will likely declare—contrary to all available evidence—that the Internet is a market failure and proceed reclassify the Internet as a “Title II” telecommunication service.
This reclassification would expose our now open Internet to regulation as old-fashioned regulated utility, the same legal structure that was applied to the Ma Bell-era AT&T. Washington regulators would have complete control of all aspects of the network.
If “net neutrality” regulations are akin to a declaration of war on real Internet freedom, then this reclassification qualifies as nuclear escalation. That it would even be considered pulls the mask off the so-called media reform movement that are pushing for net neutrality and shows them to be fully committed to a result of total government control.
Consider the words of one of the leading advocates of net neutrality Robert McChesney. As the socialist college professor and founder of the left-wing group Free Press, McChesney has said:
What we want to have in the US and in every society is an Internet that is not private property, but a public utility … At the moment, the battle over network neutrality is not to completely eliminate the telephone and cable companies. We are not at that point yet. But the ultimate goal is to get rid of the media capitalists in the phone and cable companies and to divest them from control.
Not surprisingly, Free Press distributed a blast e-mail hours after the court decision, urging circuitous alternatives: “Get ready, this is a tad complicated. The FCC needs to ‘reclassify’ broadband under the Communications Act.”
Actually, it’s not complicated at all. Proponents of Internet regulation believe America’s phone and cable companies are evil corporations that rip-off customers and interfere with innovation and free speech. But they’ve been warning of impending doom now for over seven years, and just the opposite has happened—companies have done everything possible to compete with each other on price and quality, especially in the hyper-competitive wireless market that will soon be robust enough to compete with wired home connections.
Unfortunately, the FCC is peppered with former Free Press staffers. And the administration, from the president on down, is inclined to agree with the twisted view that we need government-enforced “freedom” from free-market competition and private ownership.
I have no doubt the FCC will react to today’s court decision by redoubling its efforts to control the Internet via “Title II” reclassification. Whether they succeed depends on whether the clear majority of Internet users opposed to these intrusive regulations can be engaged to create enough political pushback on Congress and the White House to stop them.
Mr. Kerpen is vice president for policy at Americans for Prosperity and director of its www.NoInternetTakeover.com project to fight Internet regulation.