“How did the commission come to acquire this power?”

October 28, 2009

How did the commission come to acquire this power?” was the core question that Ronald H. Coase asked in a seminal paper he wrote about the FCC in 1959.

  • Kudos to Jeff Eisenach and Adam Theirer for an outstanding must-read article in The American, “Coase vs. the Neo-Progressives” that celebrates Mr. Coase’s brilliant, ahead-of-his-time insights, and his exceptional clarity-of-thought in asking that profound question fifty years ago — that couldn’t be more appropriate to ask the FCC today.

How did the FCC acquire the power to regulate the “open Internet?

The FCC did not “acquire this power,” the FCC is proposing to simply assume and assert this power by tech elite acclamation.

The term “net neutrality” slogan was first coined by Columbia Professor Tim Wu in 2002, and Google rebranded it as the “open Internet” in 2007 when Google bankrolled the creation of the Open Internet Coalition. Net neutrality was further sloganized as “the First Amendment of the Internet,” as tech elites have self-deemed that an “open Internet” is an American’s “right.”

Obviously the FCC has not acquired “the power” to mandate net neutrality and an Open Internet.

  • Think about it. Logically, if net neutrality proponents believed that congressional legislation/authority was urgently needed in 2006, 2007, 2008, and 2009, in order to bestow on the FCC the requisite net neutrality authority they needed to implement it, how can they now claim that the FCC has somehow found the authority they did not have before?
    • Either net neutrality proponents misled Congress for four years, or they are misleading everyone now.
  • Additional evidence that the FCC does not have the power/authority to implement its Open Internet NPRM, is the FCC’s own thin and indirect legal justification of its statutory authority in the NPRM (see paras 83-87).

The most important takeaway here is that the FCC appears to have forgotten that its power and authority come from Congress and the law, and that Congress’ power and authority comes from the U.S. Constitution.

Interestingly, at FCC Chairman Genachowski’s September 21st “Open Internet” speech, former FCC Chairman Reed Hundt (Chairman Genachowski’s mentor) loudly congratulated Professor Lawrence Lessig who was also in attendance, that Chairman Genachowski’s Open Internet speech was the regulatory culmination of Professor Lessig’s ideas in his 1999 bookCode and other laws of Cyberspace.

  • Why is Mr. Hundt’s credit to Professor Lessig for the FCC’s Open Internet regime important and how does this relate to the FCC’s legal authority?
  • As Professor Lessig explains on the jacket of his update of his book “Code 2.0,” an update of his 1999 work:
    • We can — we must — choose what kind of cyberspace we want and what freedoms it will guarantee.” These choices are all about architecture, what kind of code will govern cyberspace, and who will control it. In this realm, code is the most significant form of law and it is up to lawyers, policymakers, and especially average citizens to decide what values that code embodies.”

In closing, just because the FCC apparently agrees with Professor Lessig datatopian assertion that “code is the most significant form of law” on the Internet, the FCC still is governed by the rule of law, Congress, and the U.S. Constitution.

Unfortunately, for net neutrality proponents, the Courts are highly likely to block any FCC attempt to implement a datatopian Internet “code” by acclamation that does not fully abide by the “U.S. Code” of laws.

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