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Nothing Changed This Week-The FCC Still Has No Authority to Regulate the Internet

by Seton Motley

The news to be culled from this latest Federal Communications Commission (FCC) attempt to usurp Internet regulatory authority and impose Network Neutrality is – there really is no news.  At least in the broadest – and most important – sense.

What was true before FCC Chairman Julius Genachowski’s Tuesday midnight run to grab power over the Web remains true today – the FCC does not have the authority to do what they have just announced they will do on December 21st.

Unless and until the Congress enacts law making it so, the FCC doesn’t have the authority to do anything.  December’s vote to commandeer control of the Internet is no more legitimate than – and just as capricious as – if they were to vote themselves masters of all the nation’s pizza joints.

The FCC – no government agency – can just decide they want to regulate an industry – and then vote themselves power over it.  That’s not constitutional, representative, limited government – that’s Hugo Chavez-style expropriative despotism.

And it’s not as if The Chairman has been suffering from a dearth of people pointing out his lack of authority.  We have repeatedly pointed it out.  And it hasn’t just been us.

In April, the D.C. Circuit Court said so, unanimously ruling the obvious – that the Commission does not have the authority to do anything to the Internet.

Then 302 members of Congress said the same – a large bipartisan majority.  So then did more than 150 organizations, state legislators and bloggers , seventeen minority groups (that are usually almost always in Democrat lockstep) and many additional normally Democrat paragons including several large unions, several racial grievance groups and at least one anti-free market environmentalist group.

And then The Chairman officially announced his intent to usurp authority.

His Republican FCC colleagues – Commissioners Meredith Atwell-Baker and Robert McDowell – did not mince words.  Commissioner Baker said it is a “mistake,” and rightly reasserted the evident: “We do not have authority to act.”

Commissioner McDowell pointed out one of the uglier aspects of this utterly ugly power grab: “Pushing a small group of hand-picked industry players toward a ‘choice’ between a bad option (Title I Internet regulation) or a worse option (regulating the Internet like a monopoly phone company under Title II) smacks more of coercion than consensus or compromise.”

All four potential Republican House Energy and Commerce Committee Chairman – the FCC-relevant House Committee – lambasted the move and vowed to undo it as soon as any one of them are sworn in as the new Majority in January.  Notable here is that they plan to undo it legislatively, which is again the only proper way this should be done in the first place.

Tennessee Republican Representative Marsh Blackburn – an Energy and Commerce Committee member – said that The Chairman’s authoritarian decision indicated – that the FCC needed a new Chairman.

Senator Kay Bailey Hutchison, the Ranking Member of the FCC-relevant Senate Commerce, Science and Transportation Committee, was also just as displeased, and pointed out yet another unattractive feature of this lawless process – the attempt to slide this by the American people in lame duck fashion under cover of Christmas.

“I am especially troubled that this action would occur without Congressional input and before the new members of Congress have been sworn in.  The American people clearly repudiated this type of government expansion on November 2nd.”

Which raises an additional question or two.  When The Chairman was sworn in, he practically declared himself Captain Transparency.  He was going to fundamentally transform the way the FCC did business – a newly designed website to be used to openly share with the American people how the FCC does what it does.

Why then isn’t this new order – which will dramatically alter how the FCC conducts its business – posted online for the American people to read?  And why wouldn’t this fundamentally transformational order be subject to a public comment period – to allow the American people to weigh in?  Why instead is this being shoved through in absolute last minute, lame duck, end of year, under cover of Christmas fashion?

Back to Senator Hutchison:

“I have not seen any evidence to date that would justify this regulatory overreach.  In fact, the Internet has developed and thrived precisely because it has not been weighed down with burdensome government regulations.”

Reminding us yet again that Network Neutrality is a solution running around looking for a problem.  There are currently ZERO legitimate charges of Net Neutrality violations against anyone anywhere in the United States.

(The recent Level3 charge against Comcast is completely bogus, and is NOT a Net Neutrality violation.  This did not stop the FCC from deciding to take a look at it – in a by-any-means-necessary attempt to provide cover for their looming usurpation of Internet authority.)

And in fact, the vast majority of Americans like the Internet just the way it is.  And as Senator Hutchison points out, it is precisely the lack of oppressive government regulation that has led to the Internet being so likable.

So if it ain’t broke, why is The Chairman planning to execute a HUGE, overreaching Christmas power grab to “fix” it?