Will The FCC Refuse To Take No For An Answer?


Yesterday, a federal appeals court told the FCC that it had no power to regulate broadband traffic management practices, putting the kibosh on its Net neutrality plans. That leaves the agency with three basic options: Petition Congress for explicit authority to enforce neutrality regulations, attempt a regulatory reshuffling by reclassifying ISPs as Title II telecommunications services (which are more easily regulated) rather than Title I information services, or give up the Net neutrality project entirely. We're already seeing signs that the agency may choose the second route. From The Hill:

They won't let me be!

"This is a history-making decision. It appears to vacate the authority of the FCC to conduct oversight over broadband service and the telephone and cable giants that own the wires," [Sen. John] Kerry, the chairman of the Commerce Committee, said of the court's 3-0 decision in favor of Comcast.

"I am not advocating that the FCC reclassify broadband services as a result of this decision, but I absolutely believe they maintain that legal authority and it would be entirely consistent with the history of communications law in our country if they did," he said.

The FCC has already hinted it is considering such a change in its rules, stressing in a statement released earlier Tuesday that the court's 3-0 decision in favor of Comcast "did it close the door to other methods for achieving this important end."

The agency's Democratic commissioners seem to be in favor of the change:

Democrats on the Federal Communications Commission say the federal court's decision regarding Comcast has renewed their resolve to reclassify broadband as a telecommunications service in order to enact net neutrality regulations.

"The only way the Commission can make lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service that it is," said Michael J. Copps, the senior Democratic member of the panel. "We should straighten this broadband classification mess out before the first day of summer."

Similarly, Mignon Clyburn said the court's decision "does not change the importance of our goal."

Time for Regulatory World War III then?

More from Reason on Net neutrality here, here, and here. takes on Net neutrality below: 

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  1. FuCC them.

  2. Reclassifying as Title II will mean pretty much ignoring the language of Title II:

    A Title II “telecommunications service” is “the offering of telecommunications for a fee directly to the public . . . regardless of the facilities used.”

    “Telecommunications” is defined as “the transmission . . . of information of the user’s choosing, without change in the form or content of the information as sent and received.”

    A Title I “information service” (which includes, I believe ISPs) is the “offering of a capability for generating, acquiring, storing,
    transforming, processing, retrieving, utilizing, or making available information via telecommunications.”

    The two are mutually exclusive.

    1. Since when has any government agency actually followed the rules as they were first intended?

    2. What would happen if the whole Telecommunications Act of 1996 was scrapped?

      For a good time headache, read:

    3. The two are mutually exclusive.

      RC, you have the narrow view of a private sector employee. You need to take the broader view of an unelected career bureaucrat…

      1. Once you don’t have to worry about performance or being fire for lack thereof, your mind becomes open to so many possibilities that were previously inaccessible to your smaller mind.

  3. John Kerry (“Reporting For Duty”) proves once again that he is an asshat.

  4. If I don’t like the way my ISP is behaving, I have a choice between TWC, Surewest, ATT, Comcast and Sprint WiMax among others.

    But for some reason other cities only have one provider.

    1. A lot of smaller cities make exclusive contracts or bestow monopoly status on a single provider.

  5. “The only way the Commission can make lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service that it is,” said Michael J. Copps, the senior Democratic member of the panel.

    Says he who still believes there is a scarcity problem with the delivery of entertainment and information.

    Shocked…shocked! that Copps would pick what’s behind door #2 as the final only solution.

  6. “This is a history-making decision. It appears to vacate the authority of the FCC to conduct oversight over broadband service and the telephone and cable giants that own the wires,” [Sen. John] Kerry, the chairman of the Commerce Committee, said of the court’s 3-0 decision in favor of Comcast.

    No, it said that they never had the authority to begin with.

    Not all that smart for an Ivy League boy.

    1. The Ivy League is more over-rated than the Beatles and that’s hard to do.

      1. What you say is true.

        1. We resent that.

    2. Actually, it takes a degree of smarts (mixed with dickishness) to creatively reinterpret the law so it does what you want it to, rather than what it says.

      Kerry is a statist dick, but not stupid.

      1. Do you know who else was very intelligent?

        I never think (or thought) that our masters are stupid, oh no. Craven, corrupt, amoral, unethical, twisted, drunk with power and for too many, just down right evil. But stupid? No.

  7. So, if the FCC takes the second route, Comcast has to go back to court to have the court tell the FCC that Title I and II are different? WTF FCC? Sit your ass down until called upon.

  8. Using their interpretations, I don’t see why the FCC hasn’t started regulating ham radio as well.

  9. A sampling of teh stoopid from CNET comments:

    “I think the FCC will appeal and drag this thing into the Supreme Court. It deserves all the attention it can get. If I am on the AT&T network and want to check out verizon’s network from my phone, I should be able to do that and vice-versa (just as an example).”

    “The broadband networks should be considered an infrastructure, fully regulated to return a reasonable profit and then opened to any and all providers of services over the internet. Most of our peer countries have taken this approach, whereby the citizens get much faster internet service at considerably lower prices. It’s a good thing.”

    1. This^

      is why I don’t bother reading comments at other sites/blogs. People give me funny looks when I start to yell at my computer screen.

      1. Read some of the stupid comments on this decision at Huffpo then. No, don’t.

        “Da Libruls” consider this a victory for big business over the little guy. Apparently they thought government was going to come in Chavez-style and mandate Comcast provide super high speed internet equally for everyone, make the cost the same or less than they are paying now, increase the speed, and provide access to more people – and that is all. They also think Google is part of “the little guy” and that little guys don’t own parts of “big business” or local ISPs. And they can’t seem to see any issue whatsoever with the FCC, the same FCC they bash when it comes to wardrobe malfunctions, self-declaring authority over another communication medium. Maroons.

  10. One of the things that pisses me off almost more than the freedomy-sounding, but liberty-killing Net Neutrality, is that Congress doesn’t have the balls to regulate it legislatively.

    Our country is run by unelected career bureaucrats. And I’ve met libertarians who even think that’s not entirely bad.

    It’s just depressing.

    1. If it’s truly worth having, it’s worth having a public vote over.

      I know, it’s tough to work in all these picayune matters into your very busy schedule when you’re worrying about the Big Picture? and not having enough arms to pull all the levers and switches as it is.

      That’s what we need to complete the picture: a steampunk Congress

  11. …but I absolutely believe they [the government] maintain that legal authority…

    …to regulate anything, anytime, anywhere.

  12. I second your point, Paul. Who cares about votes, and the will of the people anymore. If the whiny babies don’t get their way the normal, legal way, they’ll just bypass the law, and bureaucrat it in through the back door.

  13. If you are the city parks department and you use your general funds to hire lawyers to argue for rights to do the sewer work in town, wouldn’t that suggest your department might be a little over-funded? Congress needs to look into why the FCC thinks they have the excess capability to do more regulating and lobbying. I suspect someone accidentally gave them too much money for their budget.

    1. Well, we would need more money and authority, of course. But the airwaves intertube thingies are a public trust and have to be regumulated.

  14. There is a real issue with the big cable cos and rent seeking. Most markets have little/no competition and therefore don’t function. The economist had a good piece on this recently.

    1. A lot of cities sign stupid exclusive franchise agreements. That’s not exactly the same thing as the market not functioning.

      The Economist has given up everything but the pretense of being classically liberal.

    2. That won’t be an issue as 4G deployment continues. Internet access won’t be limited to cable or even fiber optic. The wireless companies are full steam ahead now.

      Doing anything that might slow deployment and/or investment (like tacking stupid and unnecessary regulatory regimes) will minimize the possibility of lower subscriber rates.

  15. The FCC regulates broadcast TV. It does not regulate cable. Sometimes the cable companies do fight with each other about possibly dropping channels because they don’t like the terms of the deal. OTOH, the FCC massively interferes with content on broadcast TV.

    I think that the risk from FCC regulation is worse than the benefits.

  16. Oh look, leftists circumventing the democratic process by redefining words to suit their purpose. Surprised?

  17. How is the FCC reclassifying ISPs in order to evade a court order any different than Obama using EPA to regulate gas mileage, in defiance of Congress’ grant of limited authority in the matter to another agency?

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