Irresponsible Talk of Reversing Info Services Precedents

January 20, 2010

It is irresponsible for the FCC to consider self-creating new legal authority to impose net neutrality on ISPs by re-classifying currently unregulated information services as regulated telecom services (in the event that the D.C. Circuit Court of Appeals rules that the FCC does not have the legal authority to regulate the Internet in the FCC-Comcast case).

First, claims of justifying such a hyper-regulatory potential FCC reclassification based on “the pro-competitive 1996 Telecommunications Act” is upside-down logic, given that the well-known purpose of that act was “To reduce regulation and promote competition…”. [bold added]

  • After over a decade of successful experience and legal precedents promoting competition by reducing monopoly-era regulation, it would be a big lift indeed to try and justify re-imposition of the monopoly-era regulation that the Congress and the FCC have spent so much time and effort reducing.Second, if the Appeals Court overseeing the FCC concludes in the Comcast case that the FCC does not have the authority to regulate the Internet under current law, does the FCC really think that that same court won’t see through, and overturn, an elaborate FCC political ruse to manufacture legal authority all by itself without new congressional authorization?
    • Irresponsibly, this political theory would assume that the FCC can overturn several unanimous, cumulative, and factually-supported FCC precedents, on a 3-2 vote, without any countervailing evidence of market failure or a proven serious problem to potentially justify it, and not be ruled arbitrary and capricious?
    • Such a political theory would trample on the Congress’ constitutional prerogatives, the rule of law, and the legal and practical importance of precedent.

    Third, does no one else see the absurdity of discussing a return to pre-Internet “telecom services” regulation when, in the real world, everyone can see that monopoly era “telecom services” like payphones, long distance and standalone wireline telecom service are all dying, while all the unregulated information services of the broadband Internet are vibrant, innovative and growing?

    • This view defies all common sense, suggesting that the right policy for the 21st century Internet is somehow found in the 1934 regulatory model for monopoly telephone service?

    Fourth, have those entertaining what the WSJ euphemistically calls the “Plan B” option, (but which would be more aptly called the “nuclear option”) considered what throwing out a decade of policy and legal decisions that have been central to promoting broadband competition would do to current broadband investment, deployment and implementation of the National Broadband Plan?

    Fifth, have those considering this path thought through what it would mean to trade the current cooperative and productive public-private partnership and consensus to promote broadband for all Americans in the National Broadband Plan effort, with a divisive and unproductive re-litigation battle that could not help but discourage broadband investment?

    In sum, if the FCC expects those it regulates to respect its authority and decisions, the FCC has to respect the rule of law and its subordinate role to the constitutional authority of the courts and Congress.

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