Technology & Freedom

The FCC: “A Regulatory Vigilante”

In a bold move that will be taken by many as a refudiation of the message of limited government voters in the midterm elections sent to Washington, The Federal Communications Commission (FCC) on Tuesday, by a 3-2 vote, adopted rules of  “net neutrality” to regulate the Internet despite there being considerable doubt whether it had the legal or statutory authority to do so.

FCC Chairman Julius Genachowski said “it is essential” for a “strengthened FCC” to fulfill its historic role as “a cop on the beat” to ensure and preserve “basic Internet values.”

Republican Commissioner Robert McDowell, who, along with Republican Commissioner Meredith Attwell Baker, voted against net neutrality, said the FCC was now not a cop on a beat but rather a “regulatory vigilante.”

The net neutrality rules, slated to take effect in 2011, essentially prevent companies that own the broadband infrastructure from interfering with applications and programs — such as Netflix movie streams or programs that allow people to make phone calls from their computers — even if certain users disproportionately hog and clog the broadband networks and bandwidth. The rules give much more latitude and flexibility to companies in dealing with wireless devices such as Blackberries and smart-phones such as the iPhone and Android.

The passage of the net neutrality rules united Republican lawmakers in opposition to it — even Sens. Mitch McConnell (R-Ky.) and Jim DeMint (R-S.C.), both of whom have made headlines in the past for being a thorn in the other’s side. 

“The Obama administration, which has already nationalized health care, the auto industry, insurance companies, banks and student loans, now wants to brazenly control how Americans use the Internet by establishing federal regulations on its usage. This would harm investment, stifle innovation and lead to job losses,” McConnell said.

“They’ll wonder, as many already do, if this is a Trojan Horse for further meddling by the government. Fortunately, we’ll have an opportunity in the new Congress to push back against new rules and regulations,” McConnell added.

DeMint released a statement indicating he would immediately push back against the net neutrality rules during the next Congress.

“To keep the Internet economy thriving, this decision must be reversed. Regulatory reform will be a top priority for Republicans in the next Congress, and I intend to prevent the FCC or any government agency from unilaterally burdening our recovering economy with baseless regulation,” DeMint said, nothing that he would work with senators on legislation to limit the FCC’s rule-making power.

“Chairman Julius Genachowski promised his decisions would be ‘data-driven’, but this unwarranted government intervention in an already open and thriving Internet market proves that, on his watch, FCC really stands for Fabricating a Crisis Commission.” DeMint said.

And while Sen. Kay Bailey Hutchinson (R-Tex.) has threatened to strip away funding from  parts of the FCC, Rep. Marsha Blackburn (R-Tenn.) said the first bill she would introduce in the next congressional session would be legislation to roll back the FCC-adopted net neutrality rules.

During the hearing, Republican Commissioner McDowell noted that “what is past is prologue . . .  in 2008, the FCC tried to reach beyond its legal authority and it was slapped back by the court.”

McDowell was referring to a ruling by the D.C. Court of Appeals this year that unanimously struck down the FCC’s attempts to prevent Internet providers such as Comcast from discriminating against some forms of content.

Further, it is not clear if Congress has even given the FCC the statutory authority for such sweeping regulation, as even Democrats, when they controlled Congress, balked at giving the FCC such broad regulatory power. In addition, the rules, particularly a vague provision that calls for the “reasonable management” of networks, will, in McDowell’s words, clog up the courts and increase billable hours for lawyers as “litigation will supplant innovation.”

“The FCC is not Congress. We cannot make laws. Legislation is the sole dominion of directly elected representatives,” McDowell said.

In another sign that the FCC was trying to sneak these rules across the finish line, Commissioner Baker noted that she did not receive the copy of today’s Order until 11:30 p.m. on Monday, and that the revisions contained “significant changes” from the previous proposal that were nearly impossible to review in less than 12 hours.

“Mr. Chairman, you’ve set a high bar [when it comes to transparency] and you’ve lived up to it, but not here.” Baker said at the hearing.

As Republicans gear up to repeal ObamaCare during the next Congress, it now seems they may have their hands full trying to roll back the net neutrality rules.

McDowell noted that it was fitting that net neutrality passed on the day of the winter solstice, the darkest day of the year.

“The winter solstice marks one of the darkest moments for the FCC.” McDowell said.

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