Opinion

FCC-ville’s Kangaroo Court

Scott Cleland Chairman, NetCompetition

If you are guilty until proven innocent of charges that can be made up after the fact, you may be in FCC-ville.

Think of the FCC, unilaterally self-armed with the “strongest possible rules” of Title II 1934 monopoly telephone regulation, as a Washington backwater “kangaroo court,” where innocent communicators can be hauled before a mock court system where normal due process, rule of law, and justice may not apply.

Think that can’t happen in America?

Consider the evidence.

Reflect on how the FCC grabbed its Internet packet policing power.

Normally the FCC has operated on a very bipartisan basis. Not now.

The FCC’s assertion of Depression Era Title II regulatory authority to regulate the Internet as a utility has been the most partisan, major FCC policy decision in the eight-decade history of the FCC.

This FCC’s hyper-partisan Title II decision has zero Republican support, because it is considered unlawful, unconstitutional, unnecessary, unjustified, and unfair.

The FCC’s Title II Open Internet Order unilaterally repudiated the overwhelmingly bipartisan Internet policy of the 1996 Telecommunications Act “to preserve… the free market that presently exists for the Internet… unfettered by Federal or State regulation.”

The FCC’s Orwellian defense of its preemptive regulatory internment of ISPs was that it was “democracy in action” claiming that four million comments to the FCC, many incited by a literal John Oliver online mob, justify the FCC’s actions.

Reflect on how the FCC proactively has dismissed legislative and judicial checks and balances on its actions.

The FCC has summarily rejected repeated public offers from the House and Senate Chairmen of the FCC’s authorizing committees to craft a bipartisan legislative compromise for net neutrality.

The FCC has summarily rejected repeated calls for the FCC to operate more transparently while selectively forcing entities with alleged market power to be maximally transparent in how they manage their networks or operations.

The FCC has defiantly claimed the unilateral authority to do Congress’s constitutional job, to “modernize Title II for the 21st century.”

The FCC has claimed it is not bound by four decades of FCC legal precedent and is owed almost absolute court deference to interpret ambiguous law, and to change its mind without much need for justification to a court or anyone.

In a companion FCC rulemaking on municipal broadband, the FCC even claimed the power to broadly preempt states’ constitutional rights to decide their own state’s economic and fiscal affairs.

Reflect on how the FCC has asserted almost unlimited power over the Internet economy.

The FCC has re-defined the Internet to grant itself the power to potentially regulate everything that has an Internet address.

The FCC has re-imagined its limited forbearance authority to allow three un-elected bureaucrat judges to unilaterally discriminate at anytime, for most any reason, which similar entities are subjected to what FCC regulations and which are not, based on politics — not law, actual behavior, or market power.

If your name ends in “ISP,” the FCC claims an almost divine right to preemptively incarcerate ISPs in FCC regulatory internment camps for what they might do in the future, not what they have actually done.

If one’s name ends in “cloud,” “tech,” or “content,” the FCC grants them the permanent right and indulgence to force those with a name ending in ISP, to supply them with unlimited Internet downstream bandwidth at no cost forever, and to subsidize them no matter how uneconomic, unsustainable, or unreasonable that may be.

In FCC-ville there is now an arbitrary “Future Conduct Standard” that the FCC can change at any time without any notice – so if your name ends in ISP, you are guilty until proven innocent; can be interned indefinitely; and there is no time limit for how long an ISP must wait to hear the potential charges against them.

In a nutshell, the FCC community at large should be embarrassed and ashamed.

The once venerable FCC has transmogrified into a kangaroo court in backwater FCC-ville, a partisan and capricious place susceptible to mob rule, in which no one would want to be stuck for any amount of time.

Expect that our federal courts will hold the FCC accountable to due process, rule of law and the Constitution.

And expect that Congressional bipartisanship will eventually clean up this unnecessary FCC partisan mess when the courts expose for a third time, that the FCC does not have the unlimited Internet authority that it serially imagines it has.

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.