The Heritage Foundation
Imagine a future where the Internet is governed by unelected bureaucrats in Washington, DC, who rule at their own whim, regardless of legislators’ demands or judicial rule.
Sadly, that future is now.
Today, the Federal Communications Commission is poised to make an unprecedented power grab and assert the authority to regulate the Internet, despite opposition from Congress and a contrary federal court ruling. And while it’s a story that has gone largely unnoticed amid Congress’ big-ticket lame duck decisions, it’s a tale of unchecked government expansion that must be told.
Meet FCC Chairman Julius Genachowski, a political appointee and Harvard Law classmate of President Barack Obama. Genachowski is leading the FCC’s charge for new powers over the Internet so it can enact a policy known as “net neutrality,” which would allow the commission to regulate how Internet providers like Comcast or Verizon offer their services.
If you’re someone who is suspicious of big corporations, that sounds like a great idea. If you’re someone who is fearful of big government, take heed. In reality, the policy will limit consumer choice while granting the federal government unprecedented power over the Internet.
The net result [of net neutrality]— a slower and more congested Internet, and more frustration for users. Even worse, investment in expanding the Internet will be chilled, as FCC control of network management makes investment less inviting. The amounts at stake aren’t trivial, with tens of billions invested each year in Internet expansion.
There are those, too, who argue that those regulations are not even necessary. FCC commissioner Robert McDowell (who opposes the net neutrality policy) wrote in Sunday’s Wall Street Journal:
Nothing is broken that needs fixing, however. The Internet has been open and freedom-enhancing since it was spun off from a government research project in the early 1990s. Its nature as a diffuse and dynamic global network of networks defies top-down authority. Ample laws to protect consumers already exist.
And while the threat of unnecessary and harmful government regulation is worrisome, the way in which the FCC is pursuing its expanded powers is flat out alarming. Federal agencies like the FCC only have power as granted to them by Congress under the law. In this case, the FCC is charging forward full steam ahead, ignoring both Congress and the courts in order to act as it pleases — in effect, making the FCC commissioners self-proclaimed Internet Czars. But it wouldn’t be the first time the Commission has pushed the envelope of its power.
In 2008, the FCC tried to enlarge its authority when it ruled that Comcast violated net neutrality rules. The Commission based its decision on a broad reading of its powers. In April of this year, a federal court smacked down the FCC’s actions, ruling that the Commission had no authority under the law.
Then in May, when the FCC flirted with another set of net neutrality rules, members of Congress from both sides of the aisle stepped in and told the FCC to cease and desist until Congress took action.
And now, after a failed attempt by Rep. Henry Waxman (D-CA) to muster-up net neutrality legislation in the House, the FCC is back for another bite at the apple and is ready to grant itself the power to rule. Apparently neither courts nor Congress matters to the FCC Internet Czars.
So what can America say about it? Very little. For starters, FCC commissioners are, by their nature, unelected appointees not subject to the democratic process. And over the weekend, just before the FCC decision, visitors to the commission’s website couldn’t even access the 1,900 pages of documents pertaining to the net neutrality ruling.
Ironically enough, the very Commission seeking to regulate the Internet saw its website go down due to “scheduled maintenance.” As galling as that is, it’s no more shocking than what Commissioner McDowell says we will witness today:
On this winter solstice, we will witness jaw-dropping interventionist chutzpah as the FCC bypasses branches of our government in the dogged pursuit of needless and harmful regulation. The darkest day of the year may end up marking the beginning of a long winter’s night for Internet freedom.
For the time being, it looks like the FCC will succeed in sinking its regulatory claws into the Internet. Now it’s up to Congress and the courts to put the FCC monster back in its cage and remind the self-proclaimed Internet Czars that the only powers it has are those granted to them by law.
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