FCC defies court ruling and precedent – urgently trying to control internet

May 13, 2010 20:37

With Obama’s statements of ‘too much information’ being confusing and bad for democracy, and FCC’s Mark Lloyd praising Hugo Chavez’s ‘democratic revolution’, the FCC’s urgency to control the internet takes on ominous tones.

By GREGORY GARRE at IBD Editorials

The Federal Communications Commission last week announced its intent to regulate the Internet. Termed “disappointing” and “unnecessary” by the two dissenting members of the five-member commission, the decision is all the more baffling as it defies clear statements from the courts that it has no authority in the law to assert control over the worldwide Web.

Last month, in the closely watched Comcast case, the D.C. Circuit debunked an earlier FCC attempt to assert so-called “ancillary jurisdiction” over broadband Internet access under Title I of the Communications Act.

The court called the agency’s efforts “flatly inconsistent” with existing Supreme Court precedent. It observed that the FCC’s effort to stretch its authority to cover broadband Internet access would “shatter” the judge-made ancillary jurisdiction doctrine altogether and conflict with Congress’ intent in passing the law.

The FCC’s immediate response to the Comcast decision was to downplay it. Chairman Julius Genachowski acknowledged the handwriting on the wall and observed that the decision “cast serious doubt” on the FCC’s legal theory for regulating broadband Internet access.

But instead of crying uncle, he then announced that the agency was going to double down by attempting to reclassify Internet service providers as common carriers and regulate Internet access under Title II of the Communications Act. Far from shoring up the FCC’s authority to regulate the Internet, this announcement only raises the stakes for all concerned.

Less than five years ago in the so-called Brand X case, the FCC successfully defended all the way to the Supreme Court its interpretation that Internet service providers are “information service providers” — and not common carriers subject to regulation under Title II of the Act.

In making its case, the FCC told the Supreme Court that a contrary regime “would lead to a dramatic expansion of the scope of Title II’s common carrier regulations,” and that this would be “impossible to square with the deregulatory purposes of the Telecommunications Act of 1996.”

The agency explained that broadband Internet services “thrived” under the FCC’s “hands-off” regulatory approach and that the regulatory burdens that associated with common carrier status would result in higher prices and discourage investment in infrastructure.


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