FCC to U.S. Court of Appeals: Drop Dead!

May 10, 2010

By Andrew Moylan, National Taxpayers Union
BigGovernment.com

After decades of flourishing beyond anyone’s wildest dreams, the internet may soon be forced under a draconian regulatory regime created for monopoly telephone services in the 1930s. Last week, the Wall Street Journal broke the news that Federal Communications Commission Chairman Julius Genachowski plans to thumb his nose at virtually every precedent on the books and “reclassify” regulation of the internet under Title II of the Communications Act in order to pursue so-called “net neutrality” rules.

For the uninitiated, net neutrality regulations would allow federal officials to determine how internet service providers could manage the networks they built and own, ostensibly in the “public interest.” In reality, it’s been the cause du jour of lefty activists and major content provider companies like Google for years now. The activists want to have the government own and run the internet like a public utility, and the big content providers want the feds to force internet service providers (ISPs) to supply all the bandwidth needed for the applications without any barriers. A match made in heaven, if you ask me.

This announcement comes on the heels of a U.S. Court of Appeals decision which stated, in no uncertain terms, that the FCC does not have the authority to impose net neutrality regulations under the current regime. In the case of Comcast v. FCC (PDF), the court stated that the Commission does not have the necessary authority and even went so far as to say that their legal defense was “flatly inconsistent” with previous case law. My favorite line from the decision, though, came when it stated that the FCC’s argument would effectively “shatter” the existing limits on their authority. I might be reading into it too much, but it doesn’t sound like the court left much wiggle room there.

So, what the heck is Title II, and why would it be a bad thing for the internet to be regulated under it? The short answer is that it refers to Title II of the 1934 Communications Act, which was drafted in order to regulate so-called “common carrier” monopoly telephone companies. It is an antiquated structure that would allow for a myriad of burdensome restrictions, including government-regulated prices and forcing ISPs to open their networks to competing companies. This kind of regulation would be a dramatic departure from the largely hands-off approach that the FCC and the federal government have taken to the internet during its incredible expansion.

For years, the consensus on internet services is that they were properly regulated under Title I of the Act as an information service. This consensus went unchallenged for years by parties on both sides of the ideological spectrum. Only when it became clear that net neutrality regulation was a legal impossibility under Title I did net neutrality proponents begin to seriously float the idea of reclassifying the Internet under Title II. How…convenient.

This is the New World Order, ladies and gentlemen…pursuit of a bigger and more powerful government, no matter the barriers. My friend Lori Drummer covered that very issue here at BigGovernment.com last month, where she stated that “[c]ramming the Internet into Title II would go against the policy pronouncements of the Congress, the Supreme Court, and even the FCC itself (PDF).” But this Chairman apparently has little regard for long-standing decisions by irrelevant institutions like the legislative, judicial, AND executive branches of the federal government. Not when there’s regulatin’ to be done!

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