Posted on 12/19/2010 11:55:31 AM PST by IbJensen
We have two branches of government—Congress and the courts—expressing grave concerns with our agency becoming increasingly unmoored from our statutory authority. By seeking to regulate the Internet now, we exceed the authority Congress has given us, and justify those concerns.
—FCC Commissioner Meredith Atwell Baker[1]
Should regulators in Washington, D.C., set the rules for the Internet? Julius Genachowski, Chairman of the Federal Communications Commission (FCC), thinks so. He has crafted a plan to impose so-called “net neutrality” rules on Internet service providers, setting an FCC vote on the proposal for next Tuesday.[2]
Details of the plan are not yet known outside the commission and will likely not be released until after the commission votes. It is reportedly based on a net neutrality plan floated a month ago in Congress. That plan, however, was soundly rejected by Congress. The Genachowski plan—which would end-run Congress—should be rejected as well. What Is Net Neutrality?
Generally, “net neutrality” refers to the principle that owners of broadband networks should treat all traffic on their networks equally.[3] This has long been an operational principle on the Web, although in practice there have always been exceptions, and the principle has never been enshrined in any law or regulation.
In 2005, the FCC took the first steps toward making the net neutrality principle mandatory, adopting a set of four “guidelines” regarding neutrality on the Web. These guidelines declared that consumers are “entitled” to run applications, connect to devices, and access content of their choice on the Web and enjoy a choice of broadband providers. While these guidelines were ostensibly non-binding, the commission relied upon them in an action against Comcast in 2008, when—in an effort to stop “bandwidth hogs” from interfering with Internet use by less intensive users—the Internet service provider slowed downloads rates for users of certain peer-to-peer software.
After Genachowski took over the chairmanship last year, the commission quickly moved to expand the guidelines, adopting a proposal to make them explicitly binding and enlarge their scope. Lack of Legal Authority
In taking these steps toward neutrality regulation, however, the FCC faced an inconvenient obstacle: Nothing in any statute gives the FCC authority to regulate the Internet. To get past this jurisdictional gap, the FCC relied on an odd legal theory known as “ancillary jurisdiction.” Under this doctrine, the FCC may regulate in areas where it has not expressly been granted power so long as such regulation is “reasonably ancillary” to areas where is does have authority. In other words, the argument went, as in a game of horseshoes, close is good enough for FCC jurisdiction.[4]
In April, however, a federal appeals court rejected this argument, finding that the FCC does not have “untrammeled freedom to regulate activities over which the statute fails to confer.”[5] While the court did not reject outright the concept of ancillary jurisdiction, it did allow it to be used only when necessary for the agency to achieve a goal explicitly mandated by law. Legislation Rejected
Various proposals to provide the FCC with the missing authority have been advanced in Congress. Most recently, Representative Henry Waxman (D–CA) floated a proposal to allow the FCC to stop “unreasonable” discrimination.[6] This failed to get support, however, as has every other proposal to grant the FCC regulatory power over the Internet.
The proposal to be voted on at the FCC on Tuesday is an attempt to move forward with regulation despite the absence of congressional approval. Like the Waxman plan, it is expected to forbid “unjust” or “unreasonable” discrimination, leaving the exact practices to be banned to case-by-case decision making.
Many hard-core regulation supporters are disappointed with the plan and are instead urging that the FCC ban discrimination outright. That would be dangerous, as there are many reasons that differentiation among different types of content could make economic sense or even be critical to managing a network. With increasing demands on the Internet, certain types of prioritization common in other industries—such as selling premium or discount access to content providers—could be beneficial to users. More immediately, growing use of the Web is making active management of that traffic (such as controlling bandwidth-hogging) critical.
While the FCC plan would not bar all discrimination, it would vest vast discretion in the FCC to determine what is allowed and what is not. Critical decisions as to what is permitted and what is not would be left to the political whims of five FCC members. At best, that will create an unpredictable atmosphere, with firms left unsure whether their activities will be deemed acceptable. At worst, it will lead to abuse and political game-playing. Level 3
Case in point: Earlier this month, communications provider Level 3 got into a business spat with Comcast over how much it will pay, if anything, Comcast to handle traffic from Level 3’s network. Such negotiations are common among networks, and the longstanding system of private interconnection agreements has worked quite well. Yet Level 3 claimed that Comcast’s request for payment to carry Level 3’s traffic violates net neutrality rules. The claim caused a political stir that promises to help Level 3 in its ongoing negotiations. The incident is likely a harbinger of rent-seeking to come under a net neutrality regime, as firms—as well as political advocates of all stripes—use vague neutrality rules to advance their interests.[7]
The overall result would be bad news not just for Web surfers but also for the economy as a whole. Investment in broadband today is one of the few bright spots of the economy, with providers expected to invest some $30 billion per year in private capital into their networks annually for the next five years, creating hundreds of thousands of jobs.[8] Neutrality rules would threaten that investment and those jobs by hindering efficient network management and creating uncertainty. Strained Connections
At the same time, it is still unclear how the FCC will manufacture the necessary legal authority to do any of this. While the commission may point to various parts of the Communications Act that cover some aspects of broadband Internet service—such as regulation of cable TV and licensing wireless transmissions—the connections between these and regulation of the Web are tenuous and strained. As a result, whatever is voted on will likely be quickly struck down in court.
Yet it appears that Genachowski intends to ignore Congress, ignore the law, and ignore the potential damage to the economy and the Internet itself in order to impose regulation. Policymakers should not wait for the courts to strike down this ill-conceived regulation. The commission should vote it down on Tuesday. If it does not, Congress should use its power to intervene and nullify the rule.
I would just like to know where in our constitution is congress authorized to pass ANY legislation authority to anyone?
So we are clueless are we?
The internet has grown exponentially in size and features thanks to almost a total lack of government interference.
Given how governments of all strips have a horrendous record on almost anything they try to control it would seem that you are the clueless one here.
Anyone who believes that government can or will improve the internet experience is in serious need of immediate mental care which under obomination care might be available in 8 to 12 months providing you fit their age criteria. Don’t want to be wasting those valuable communist dollars on old people.
Hey upchuck, one of our villages is missing its idiot.
I'm sure they have a policy of blocking hot-links from sites that promote hate. I'm sure they are not tracing your IP address and you will not soon receiving a visit from agents of a gov't agency you have never heard of. Your medical, IRS, Passport, military/VA, mortgage and credit records are absolutely secure.
Congress can and I believe will start de-funding the Federal Government. The money’s GONE.
I stand corrected.
lol. They are going to find very little...
That will just make them angry and will justify further digging.
"What is he trying to hide?" "Call in a specialist, give him the TSA treatment."
I watched a little of that video last week.
Her thought processes were so scattered that I was breaking my brain trying to follow what she was saying. I finally just quit.
Can you spell “nepotism?”
It’s disturbing that the commissioners are appointed unanimously. I guess the senators figure, “It’s the FCC, I don’t have time for this.” Maybe now they will.
They may have taken an oath to ‘defend the Constitution’, but they had their fingers crossed.
Lord have mercy, if everyone had to have the slow connection that I have that would be torture and youtube would be one of the first things to die.
“While the FCC plan would not bar all discrimination, it would vest vast discretion in the FCC to determine what is allowed and what is not. Critical decisions as to what is permitted and what is not would be left to the political whims of five FCC members.....”
“....communications provider Level 3 got into a business spat with Comcast over how much it will pay, if anything, Comcast to handle traffic from Level 3’s network. Such negotiations are common among networks, and the longstanding system of private interconnection agreements has worked quite well. Yet Level 3 claimed that Comcast’s request for payment to carry Level 3’s traffic violates net neutrality rules...”
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The article started off sounding like the FCC was going to save us from pay-per-surf internet. But then somehow it turns into the Gov’t will determine what is allowed and what is not, rather than the individual companies.
But it is a hard one to say “let the free market figure it out” when there are so few providers.
No one is claiming the government will improve the internet experience. What everyone with reasoning skills KNOWS is that telco’s are going to KILL the internet as we know it. Customer experience is going to plummet as the sites you want to access can only work on the highest tier package. Anything streaming - netflix, radio, music, etc... are no longer going to work without paying tons more.
I don’t like the current proposed bill, and I don’t like what WILL happen without out. There needs to be something in ther middle. The FCC should be involved in traffic flow, not content.
Enjoy watching videos on the web now, because without some form of net neutrality, your ISP will shut down any form of streaming without paying tons extra.
But the telcos are doing it for their customers *rolls eyes*. And you people are buying into that crap.
Don't blame me. I live in the country and am on a dial up 56K line.
What is streaming? :-)
Tomorrow is the day (12/21/10). I suspect the lawsuits claiming unauthorized overreach have already been drawn up.
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