Any legitimacy the FCC has comes from the authority of law written by a duly-elected Congress under the U.S. Constitution.
Twice the FCC has tried to mandate new net neutrality regulations on its own and twice the U.S. Court of Appeals has overturned the FCC rules as illegitimate because they were not grounded in statute.
Rather than asking Congress for net neutrality authority in a new law, the FCC is in the process of trying to conjure up new “authority” again by itself, this time by creating a new “hybrid” mix of 1996 law (Section 706) and 1934 law (Title II telephone utility rate regulation.)
In the FCC’s second net neutrality defeat in Verizon v. FCC, the court mercifully suggested a roadmap for the FCC to legally justify much of the FCC’s desired rules under its 1996 Section 706 authority, but not its most coercive rules designed to effectively ban a two-sided free market via setting a permanent zero-price for downstream Internet traffic.
In May, FCC Chairman Wheeler very wisely took the Court up on its advice and proposed an FCC Section 706 approach that would allow the FCC to gain legal legitimacy for roughly 80 percent of what it originally proposed in 2010.
Unfortunately since then, there has been extreme political pressure on the FCC to impose unnecessary and unwarranted Title II utility regulations on the Internet.
Now the FCC appears to be on path to risk losing the 80 percent “bird in the hand” (i.e. legitimate net neutrality rules based on 1996’s Section 706) in grasping for the “two birds in the bush,” (i.e. illegitimate 1934’s antiquated Title II utility law that predates the Internet by sixty years).
Will the FCC learn from experience?
In trying to re-impose price controls that the court found the FCC did not have the legitimate authority to impose in the first place, the FCC is considering basically re-doing what it did the last two times it failed in court, i.e. re-proposing yet a new “hybrid” of combined FCC authorities, in a new hybrid mix of re-packaging, to see if they can get a different appeals court panel to swallow the FCC’s third hybrid cocktail.
The only legitimate FCC “hybrid” net neutrality approach is for the FCC to respect the legitimate legal path the U.S. Court of Appeals effectively advised the agency to follow, combined with an official request to Congress for the new legal authority the FCC believes it requires to regulate effectively in the 21st century.
If the FCC seeks lasting 21st century legitimacy, attempting to apply the most coercive and destructive possible industry regulation without clear legal authority or the support of a majority of Congress won’t get them there.
If the FCC seeks the legitimacy of industry respect for the agency’s authority going forward, the FCC should respect the rule of law, court precedents, and Congress’ authority.
If the FCC seeks legitimate net neutrality rules that no one will seek to game or circumvent, then the FCC should lead by example and not game or circumvent legal and congressional processes to justify a regulatory outcome not based in the statute.
In short, as Congress undergoes a comprehensive update of America’s communications law and the FCC’s authority for the 21st century, the open question is: will the FCC choose the only legitimate “hybrid” net neutrality approach, i.e. following the court’s clear Section 706 guidance combined with an official request for new authority from Congress?
Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.