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Court Upholds the FCC’s Politically Driven Decision to Regulate the Internet Like a Utility

The White House pushed the agency to reclassify internet service under Title II, and the agency complied.

Credit: FCC Commissioner Ajit Pai's Twitter feedCredit: FCC Commissioner Ajit Pai's Twitter feedA federal appeals court just gave its stamp of approval to the Federal Communications Commission's politically motivated decision to regulate the internet like an old-style utility. The ruling is a major victory for advocates of net neutrality, and in particular for the Obama administration, which pushed the FCC to pursue a heavy-handed regulatory scheme for the net.

The FCC's years-long quest to implement neutrality is a lengthy bureaucratic saga built on a back and forth between agency rule changes and court decisions. But at its core, it's a story about political pressure to expand the federal government's regulatory power over the internet.

Just over a year ago, the FCC voted to radically overhaul the way the internet is regulated, changing it from a lightly regulated information service under Title I of the Communications Act to a much more heavily regulated telecommunications service under Title II. Essentially, the FCC decided to regulate internet service providers (ISPs) as a utility, like legacy landline phone systems, under a regulatory model developed in 1934.

That move was designed to give the FCC the legal authority to implement strict rules around net neutrality, which would govern how ISP can manage and design traffic flow across their networks. The basic principle of net neutrality is that all internet traffic should be treated equally, which supporters argue is necessary in order to avoid internet fast lanes that discriminate against certain types of traffic.

But in practice what it ends up doing is limiting how internet companies can manage their networks, while giving the FCC a huge amount of discretionary authority over online innovation. Net neutrality rules typically have carve outs for "reasonable" network management, but what that inevitably is that the FCC ends up deciding what is and isn't reasonable on a case-by-case basis. So any time internet companies are planning to put in place new network functionality, they have to consider the possibility that the FCC will nix it as unreasonable.

It's effectively a system that requires ISPs to ask the FCC for permission to improve their networks. And the end result is that there's a chilling effect on ISP innovation , and that the FCC turns in a powerful chokepoint that has substantial, relatively unchecked power over what sorts of innovations are allowed.

Net neutrality has long been a priority some of the Obama administration's most active supporters, with groups like MoveOn pushing the issue, and in turn it has also been a priority for the administration. In 2008, Obama campaigned on implementing the policy, and during the president's first term, the agency attempted to implement net neutrality rules, with then-Chairman Julius Genachowski declaring that the agency "must be a smart cop on the beat preserving a free and open Internet." But the agency was repeatedly rebuked by the courts, which said that the FCC lacked statutory authority to regulate net neutrality.

That's where Title II comes in. The FCC has much more authority to regulate services under Title II than under Title I, and net neutrality advocates have long argued that the surest way for the FCC to claim authority to regulate net neutrality is through a wholesale shift in the way the agency classifies internet service.

A number of FCC commissioners, however, maintained that a wholesale reclassification would cause a number of serious problems, and would require a legally fraught "forbearance" process, in which ISPs would be exempted from some parts of Title II that wouldn't or shouldn't apply. FCC Chairman Tom Wheeler, who was appointed by President Obama, initially resisted the idea of Title II reclassification, and developed a proposal intended to implement net neutrality rules under Title I.

Then, in the fall of 2014, President Obama put out a statement explicitly urging the FCC to pursue the "strongest possible" net neutrality rules by reclassifying internet service under Title II. Shortly thereafter, Chairman Wheeler shifted his position too, proposing to go ahead with the reclassification process. 

Now, Wheeler is, in theory, the head of an independent agency that is not subject to orders from the White House. Appearing before Congress, Wheeler denied receiving "secret instructions from the White House," and claimed that there had been no collusion between his agency and the administration regarding the Title II overhaul. Wheeler's sudden turnabout didn't make much sense, and neither did his stated reasons. He argued that wireless networks had thrived under Title II, for example, seeming to forget that they had been specifically exempted from Title II regulated. 

But the timing of the shift was more than a little suspicious. And there were more than a few reasons to believe that the move had been driven by the White House's influence.

As The Wall Street Journal reported last year, the White House had engaged in an "unusual, secretive effort" to make the case for reclassification, with a pair of aides running a projected that "[acted] like a parallel version of the FCC itself" in what the aides believed would be a defining part of the president's legacy.

The White House's influence was further confirmed in March of this year, when a Senate Republicans released a report revealing internal FCC emails showing that agency staffers believed that President Obama's declaration of support for reclassification would affect the drafting of the new rules. One FCC staffer forwarded a news article about the president's announcement with the subject line, "Obama says to make it Title II." The FCC may not have been given a secret order, but staffers understood perfectly well what they were being told to do, and proceeded to do it.

So this is what the federal appeals court held up today: Not just the latest government plan to regulate the internet, but an unusual and politically motivated scheme to give federal regulators far more power over the internet, and, in the process, to give the White House far more influence over supposedly independent federal regulators. This will certainly be part of Obama's legacy—but not, I suspect, in a good way.

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  • But Enough About Me||

    Oh, fuck me.

  • Lee G||

    Oh they will. They will.

    Who remembers Ma Bell and the incredible service they provided?

  • But Enough About Me||

    Ooooo! OOOOOO! I DO! I DO!

    The Canadian equivalent was awesome -- why, you could get phones in TWO DIFFERENT COLOURS!

    **HEAVY SIGH**

    Goodbye, innovative 'Net. It was nice knowing you.

  • ULOST||

    "Oh, fuck me." Well said. The FCC paving the way for the FEC. Will someone please cut the matrix wire.

  • ||

    I have been told not to attribute malice where incompetence can explain but I have a hard time buying that. It isnt just the government fucks up everything it touches, it fucks it up deliberately. If someone doesnt cut these motherfucker's nuts the internet will be frozen in its current state.

  • Scarecrow & WoodChipper Repair||

    That's what statists want -- stasis, frozen for eternity. Yesterday's stasis would be ok, but not too far back, they want the progress they already have, except for that nasty GMO progress, and the vaccine progress, and lots of other untoward progress too -- they'll let you know when they see you trying to use it.

    And none of that icky future progress. They don't know what it is, therefore it doesn't exist, therefore it's nasty and icky and awful and verboten. Except solar and wind power, except not wind power with birds in it, but no other progress, ever.

  • Mainer2||

    Look at the innovations they promote. Trains, windmills, electric cars. All of which have been around for a century to 10 thousand years. Progress.

  • Hunthjof||

    That is a nice ISP you got there be pretty bad if something terrible would happen to it. Ahh I can't wait for the creaming on the left. Lobbyists, Lobyyists!. Well f-in duh stupid you just gave a unelected unnaccountable agency the power to make their life great or hell WTF did you think was gonna happen.

  • Mainer2||

    Another example of how the left is not just wrong, but 180 degrees wrong. The party of science and progress is forever trying to make the world stand still so they can control it. They create nothing because they aren't clever enough. Yet they deem themselves Top Men; their ivy league sheepskins are proof positive they are smarter than a mere businessman. God knows what innovations have been stifled by these crude idiots.

  • Scarecrow & WoodChipper Repair||

    I realized the other day that Progressives are not as dumb as I had thought. They do recognize that a moving target is harder to control. Some kind of primeval instinct, probably, not actual thought, but it's more than I had been giving them credit for.

  • Scarecrow & WoodChipper Repair||

    Wouldn't it be fun if Net Neutrality were applied to freeways, to keep those elitist Ferrari owners from going faster?

    -- No car pool lanes

    -- No lower speed limits for trucks

    -- No exceptions for emergency responders

    -- No vehicle could accelerate faster than any others

  • Red Rocks Okey-Dokein||

    So basically, Netflix users now have free reign to clog up bandwidth and fuck things up for people who don't use that service, while not compensating the ISP for the maintenance of existing infrastructure or installation of new infrastructure required to sustain the traffic demand.

  • Scarecrow & WoodChipper Repair||

    Yes, you got it! Those huge movies have as much priority as those single-packet alerts and text messages. Anything else is unregurgitated sizism.

  • The Last American Hero||

    Rationing is popular with the left. Always has been.

  • Hunthjof||

    Not to mention your internet bill will go up to the level of the guy who is streaming Daredevil playing WOW and downloading 5 movies all at once while you use it to email a photo of your kid to his grandparents. Ahh equal misery abounds.

  • Lee G||

    I look forward to all of the better service and reduced prices that I'm going to get as a result of this decision.

  • Eeyore||

    I look forward to the new mysterious list of tax line items that double my bill for no apparent reason.

  • The Grinch||

    Is this the appeals court that trumps all the others or will this ruling just be appealed and, possibly, overturned?

  • Lee G||

    in what the aides believed would be a defining part of the president's legacy

    Right up there with Obamacare and Dodd-Frank

  • Mainer2||

    -$2,500

  • ||

    Everything that shitbird does fucks the American people. I simply cant believe it is incompetence or accident.

  • Diane Reynolds (Paul.)||

    Isn't it funny how often the media points to services like Twitter as being powerful tools for revolutionary movements to upset or unseat tyrannical governments, and yet there's this very popular-- nay populist push to essentially nationalize these things?

  • Almanian's Rusty Woodchipper||

    Jesus fucking Christ.

  • Lee G||

    It's about fucking time! My downloads were getting slower and slower. I couldn't even watch two movies while using my favorite torrent client to get the latest XXXXHD porn and the entire Library of Congress.

    If ever there were a solution to a problem that didn't exist. The fucktards who supported this have no clue what they just did.

  • Mickey Rat||

    They do not care. They just want "fairness". If it is damaging then it is the price we pay. (it seems to be why universal health care remains popular in Canada and Britain despite the restrictions on services).

  • BYODB||

    No, you forget, if it doesn't work out it's someone else's fault that it's ruined. Their regulations were perfect, until that mysterious other stuck their fingers in the pie!

  • Injun, as in from India||

    This IS unilateral lawmaking. It's got to be unconstitutional.

    But unfortunately, the court lost Scalia, and the statist bootlickers on the court will let this prevail.

  • Mickey Rat||

    This is even worse. It looks like the FCC was deliberately empowered to be its own executive and legislature, theoretically independent of the actual national branches.

  • Zunalter||

    Considering we are literally overrun by government regulation gone insane, all of which constitutes unlegislated lawmaking, why are the courts now going to come to the rescue, Scalia or not?

  • geo1113||

    If it ain't broke, fix it!

  • dantheserene||

    Three political appointees determining the future of the Internet. What's that line about the government being things we do together?

  • NotAnotherSkippy||

    Fucking socons. When will they learn to embrace change?

  • ThomasD||

    Don't worry. The CFPB is not paying any attention to this. None at all.

  • dantheserene||

    CFPB stands for Central Florida Packer Backers (est. 1987; Orlando, FL)? Acronymfinder.com wasn't much help on this one.

  • PapayaSF||

    How long before "hate speech on the internet" becomes something the FCC "must do something about"?

  • toolkien||

  • Rockabilly||

    Taxing a regulating brings joy to the prog.

    This is why progs want to re-legalize marijuana.
    No because it is is the just thing to do.

    Oh no.

    They want to re-legalize marijuana so that can
    Tax and Regulate the plant and everything associated with it.

    Just think of all the regulations just waiting to be done. Different strains and all those various kinds of edibles, not to mention all the vapes and other accessories.

    Man, this is prog heaven!

  • Lloyd Clucas||

    Someone needs to compile a photo folder of every single Obama appointee and advisor. Then detail each of their political backgrounds. I think this would give us a map of what has gone wrong the last 7 1/2 years. The country's administrative personnel chart tree will tell a story of the destruction of all values liberty-loving people hold dear.

    It reminds me that the first Presidential candidate I will be able to take seriously will run on a Repeal platform: one big agency-enabling piece of legislation per work day.

    No, I won't hold my breath. But sometimes one only has hope to live on.

  • ranrod||

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

  • ULOST||

    Just watched a toyota hybrid commercial in Spanish as the price for reading this. Reason's demographics much be much different than I thought. Explains mucho.

  • JOB||

    Net neutrality is a trap. Giving the State control over the primary means by which oppressed people can get their information out when gov'ts try to suppress it . . . that's stupidity itself.
    .
    Someday, your worst enemies will be in charge of decided what regulations will "control" the Internet. Will you be happy about that? Or does the thought scare you?

  • Ssemans||

    I'm crying crocodile tears. I regularly have to go to a City "regulator" who is powerless to fix the many screwups and gouges inflicted by Comcast on its captive customers. The latest? Comcast's email is now tagged so that macintosh mail aps more than 3 years old don't recognize it. Result? Comcast account holders don't know that some of the mail they send isn't received on mac computers. I could go on about Comcast, but they and their ISP buddies have the lowest consumer satisfaction scores of any large corporate businesses. There's no competition with a monopoly provider. This is not an issue likely to gain sympathy for deregulation - it's not a one sided story.

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