“The FCC did not have the statutory authority to do what it did” On Net Neutrality, Says Departing FCC Commissioner

Photo credit: jdlasica / Foter.com / CC BY-NCPhoto credit: jdlasica / Foter.com / CC BY-NCThe biggest failure of the Federal Communications Commission (FCC) under President Obama, says departing FCC Commissioner Robert McDowell, was the long push to regulate Internet traffic management via net neutrality rules. The net neutrality push, which consumed the agency during 2009 and 2010, was a major initiative under Chairman Julius Genachowski, a campaign fundraiser and law-school classmate picked by the president to be the nation's top tech regulator. 

Both Genachowski and McDowell announced last week that they would be leaving their commission posts.

In an exit interview with Ars Technica, McDowell, a Republican appointee who became a commissioner under President Bush, reiterated his case against the Internet traffic rules:

"First of all, I've been a strong advocate for a free and open Internet. What I opposed really focused on, first of all, there is no market failure that needed to be addressed. Second, the FCC did not have the statutory authority to do what it did. Third, if there had been a problem there were laws already on the books that would have addressed the problem. There wasn't a problem before the rules and there's not a problem with any danger of a closed Internet in this country after the rules. For those who think the rules have preserved an open Internet, that's sort of like a rooster taking credit for the sunrise."

These are the important points about net neutrality: It’s not necessary, and it’s probably not legal. 
The policy’s backers could never point to more than a tiny handful of concrete examples of violations they wanted to prevent — the FCC named just four in its order, one of which was dismissed by a court and another of which did not ever result in a formal complaint. It was a solution in search of a problem.

And it was a solution that the FCC did not have explicit authority to pass. As a D.C. circuit judge pointed out when the agency attempted to justify its original net neutrality guidelines — which were held merely as policy principles rather than actual rules — the FCC’s lawyers could not point to any statute explicitly giving them the power to regulate Internet traffic. The court eventually ruled against the FCC on the grounds that it was trying to enforce non-binding policy principles rather than actual regulations. The court’s ruling left open the possibility that explicit rules might be legal, however, so the agency went ahead and passed explicit rules (McDowell voted against the rules). But those rules still lack statutory backing, which is why they are now being challenged again in court. 

I chronicled the story of the push to pass net neutrality rules in Reason’s March 2011 issue

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  • Fist of Etiquette||

    ANOTHER BUSH DEREGULATOR.

  • ||

    The only purpose of "net neutrality" is state control over the internet. That's it. Anyone who supports "net neutrality" is either a blithering idiot who hates their ISP enough to want to give the government control over the internet, or a complete statist tool. "Comcast won't let me torrent as fast as I want to! Let's have the government come in and make them let me! That won't have any consequences!"

    Fucking morons.

  • ||

    Luckily, the push for such nonsense seems to have died down in the last year or two.

  • ||

    a blithering idiot who hates their ISP enough to want to give the government control over the internet, or a complete statist tool

    Same difference. Because while almost everyone hates his ISP, those who aren't statist tools know they should probably blame the state to begin with, at least in part.

  • Matrix||

    well, you can also blame the government sponsored monopolies ("franchises") for onerous practices by internet providers.

    the market should be free, so that multiple companies can provide service in an area. What we're stuck with is usually 1 cable provider and 1 DSL provider. and DSL sucks big time.

  • ||

    Yeah, that was my point.

  • ||

    Or Uverse, I'm never going back to cable.

  • Matrix||

    I don't have Uverse where my house is being built. But they seem slower and more expensive than cable from looking at their rates.

  • ||

    It hasn't been in my experience, especially in practice (vs. what they say they will do). I got it in law school when Austin was one of the only places to have it. They offered free DVR with 4 recordings at once. Nobody did that at the time. The customer service has been impeccable as well.

  • JW||

    The fawning over this statist goon in the comments section of the major tech sites is appalling. From what I can tell, the overall drive to support control over the Internets is the desire to fuck Comcast in the ass. That, and the idea that only our ruling elite is wise enough to tell us what we should do.

    If the sheer, shit-sniffing idiocy of this gushing mob was enough to destroy what they had, I'd be cheering for all the schadenfreude I could eat and urge them on. But, it would end up screwing everyone else, including me, so fuck these little control-freak cunts.

  • Brett L||

    The funny thing is, Comcast would have happily sold any of the people who got throttled a higher bandwidth connection for a higher price. These dickheads just felt entitled to using the whole pipe but paying for a small share.

  • Loki||

    These dickheads just felt entitled

    You can pretty much just stop there.

  • JW||

    These little turds really have bought into the idea that the lines the Internet runs on "belongs to everyone." Yeah, go right on with that attitude, because in another year or so, your health is going to become my issue, and boy-howdy, do I have some things to say about it.

    Copps was the worst of the elitist troglodytes, still yammering on about the scarcity of information and bandwidth in 2009 and how we needed the FCC to wisely manage it. No thanks grandpa, we've got this one.

  • R C Dean||

    After years of getting buttfucked for dreadful satellite internet, I'm positively looking forward to getting wined and dined by ComCast.

  • Matrix||

    Satellite internet?

    My hat is off to you, sir. you have truly endured more than any person should.

  • Paul.||

    Sashdot weeps.

  • Paul.||

    Slashdot. Whatever. They're undoubtedly pissed.

  • Scruffy Nerfherder||

    It's more like wailing and gnashing of teeth over there whenever you bring up the failure to initiate "net neutrality" rules by the FCC.

    For technically literate people, they really don't have a freaking clue why the old POTs system was so clusterfucked by regulations and bureaucracy.

  • Paul.||

    Most of those whippersnappers don't know what POTS is.

  • SumpTump||

    Sometimes dude, you jsut have to roll wioth it.

    www.MaxAnon.tk

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