Regulating the Internet, One Way or the Other

April 9, 2010

By Lori Drummer

According to Tuesday’s unanimous court ruling, the Federal Communications Commission (FCC) is not above the law – no matter what Commission Chairman Julius Genachowski or his Leftist friends at Free Press might wish.

For the past several years, the Left has breathlessly claimed that without the imposition of government oversight and control, the Internet as we know it will cease to exist.

Just try and follow the Left’s logic for a moment.  The Internet – whose ingenious development and explosive growth has occurred almost entirely free from the heavy hand of the government – will cease to exist as we know it without the heavy hand of government?

This week’s ruling by the U.S. Court of Appeals for the D.C. Circuit clearly states that the FCC does not have the authority to impose network neutrality rules on Internet service providers.  Indeed, the FCC “failed to tie its assertion” that any law gives the Commission regulatory authority to oversee Internet providers’ network management practices.

 That’s right: no law exists that gives the FCC the authority to regulate Internet service providers.  It’s not that the FCC just misinterpreted their authority – they unilaterally asserted authority where none existed.

So, what’s this Obama FCC likely to do now?  Well, forge ahead anyway, of course!

Instead of suspending their network neutrality rulemaking proceeding, the FCC has extended the comment period for the proceeding (from April 8 to April 26), seeking creative ideas on how they can legally assert their authority to regulate the Internet.

The FCC started out its Open Internet proceeding with high-minded rhetoric about it being a “fact-based” investigation. But in the wake of the court decision, the investigative process increasingly resembles a fact-based inquiry among cats as to the proper treatment of mice.

In the end, the Commission’s attempt to enforce a regulatory regime over the Internet without Congressional approval is unlikely to pass judicial muster.  But testing those limits seems to be what the current FCC Chairman and his boss over at 1600 Pennsylvania Avenue seem to have in mind:  Expand the role of government over wide swaths of the economy by whatever means necessary.

So, instead of appropriately seeking Congressional approval, which would be difficult, and probably unsuccessful, expect Chairman Genachowski and the Democratic majority at the FCC to pursue a path of forcing Internet providers into a regulatory box known as Title II of the 1934 Communications Act.  No, that’s not a typo.  They really are talking about applying a 1934 statute to the Internet.  (Hope all those gamers learn to love pushing hoops around with a stick!)

What would that mean? In her own admission, network neutrality proponent Gigi Sohn of Public Knowledge plainly stated on PBS’s NewsHour:

“…the best option is for the FCC to reverse its 2002 decision that deregulated broadband Internet access. If they reverse that decision, they say, look, we were wrong in 2002 — the predictive assumptions we made were wrong. The market has changed. We’re going to now regulate broadband access again.

Cramming the Internet into Title II would go against the policy pronouncements of the Congress, theSupreme Court, and even the FCC itself. It would place the Internet under an outdated regulatory scheme designed for antiquated phone monopolies – and treat broadband like a public utility.  But, it would give these power hungry regulators a better shot of enacting net neutrality regulations, taxing internet services under the Universal Service Fund, and even regulating Internet pricing.  These policies are implicitly and explicitly written into the National Broadband Plan Chairman Genachowski just sent Congress.

The Obama FCC, Free Press, and Public Knowledge will not stop until the federal government regulates the Internet.  Through network neutrality regulations, the National Broadband Plan, or shoving the Internet into Title II, their motives are clear: to control the Internet.

If the Left wants yet another hot-button issue to contend with in the upcoming elections, I think they just found it.

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