FCC Internet Regulation: Not So Fast

In the House, HJ37, the resolution to disapprove the FCC action, has been approved on a floor vote of: 238 to 174.  Last December, under cover of the holidays and the spectacle of the lame duck Congress, the Federal Communications Commission (FCC) defied a federal court and enacted an internet regulatory takeover.  In answer, the House began moving House Joint Resolution 37 through committee.  The resolution will cancel the FCC rulemaking and bring the policy discussion back to Congress.

Thus, the FCC and the House of Representatives have begun a classic Separation of Powers struggle.  The debate involves a simple yet critical question: is policy established by an elected Congress or imposed by appointed agency bureaucrats? 

The short history

The FCC action became an issue after Comcast was involved in a dispute with BitTorrent applications.  Certainly, the controversy had every potential of becoming a marketing nightmare for Comcast.  No business wants a reputation of shortchanging its customers.  The dispute ended with an agreement between Comcast and BitTorrent

In spite of competitive market forces at work, the FCC solution was to assert jurisdiction over the internet.  Comcast in turn challenged the FCC in court, while senators and representatives of both parties publicly questioned the FCC action.  This should have been taken as a signal to the FCC to go slow and take care.

The issue came to a head when a three-judge appeals court panel unanimously overturned the FCC.  The court opinion ruled that the FCC did not have statutory authority.  In this situation, agencies generally ask for new authority from Congress, or, if the issue is not so important, they let it drop.  The FCC made a third choice.  Ignoring the court and Congress, the FCC reclassified broadband internet access into a telephone service under rules designed for a monopoly that no longer exists.

The separation of powers struggle

The Framers of the Constitution understood the necessity of preventing the concentration of power in one pair or group of hands.  They chose a system of checks and balances that divided enumerated powers among the three branches of government. 

Congress has the constitutional power to establish policy and write laws.  Often, Congress may lend or delegate authority to agencies to write rules.  In the case of the FCC, Congress does not wish to be bogged down in technical rules, and those tasks are delegated to the appointed FCC administrators, who make rule decisions on behalf of Congress -- decisions often unknown to the public.

Congress conducts oversight of agency rules under the Congressional Review Act.  Procedurally, what happens is that Congress passes a resolution of disapproval.  The resolution bypasses the Senate Majority Leader.  Only thirty senators are needed to force a floor vote that would require 51 votes to pass.

In the House, HJ37, the resolution to disapprove the FCC action, has moved to the floor on a path to adoption by the House.  Yahoo news reported the political situation this way:

Probably more to the point: The FCC is, in a nutshell, attempting to wrest control from the legislative and judiciary branches.  Democrat or Republican, not a lot of politicians are likely to be itching to jump on that wagon.

A second front in the separation of powers struggle has now opened up.  The FCC December rulemaking, which was taken in spite of previous court rulings, has spawned further court action reported in the Wall Street Journal:

In January, phone companies Verizon Communications Inc. and MetroPCS Communications Inc. sued to overturn the net-neutrality rules in a federal appeals court, and more lawsuits are expected after the FCC formally publishes the new rules.

The courts have since dismissed the Verizon and MetroPCS suits because they were filed before the FCC action was published in the Federal Register. Verizon is expected to re-file its lawsuit. 

Meanwhile the FCC continues its attempt to expand its power.  Last Thursday (4-7-11) the FCC moved to impose regulation on the wireless Internet.  Just the same we see the clash as the House and courts resist the FCC attempts to take control.  This is political competition playing out among branches of government, just as the Founders had in mind. 

The policy debate we should have -- why does it matter?

As I said at the beginning, we have a simple yet critical question.  Is policy established by an elected Congress or imposed by appointed agency bureaucrats?

Tim Wu, the Free Press Lobby, and its founder, Robert McChesney, have been actively lobbying for FCC involvement in content regulation for more than five years.  McChesney was candid when he said, "What we want to have in the U.S. and in every society is an Internet that is not private property, but a public utility."  A PUD, of course, is a government-operated utility, although traditionally, these have been small and local districts. 

Other than a few blogs and specialty publications such as this City Journal article, coverage of the lobbying effort went largely unnoticed in the legacy media.  As Angelo Codevilla observed:

The bureaucrats do not enforce the rules themselves so much as whatever "agency policy" they choose to draw from them in any given case. If you protest any "agency policy" you will be informed that it was formulated with input from "the public." But not from the likes of you.

The policy discussion belongs in its proper venue of Congress and under the sunlight of public view.  Here are just some of the questions open to public debate:

  • What are the limits of FCC statutory authority?
  • Which of the three logical choices does the public want?
    1. A private monopoly internet that is government-regulated?
    2. A competitive free market of multiple vendors policed for criminal activity following the rule of law?
    3. A monopoly, government-operated internet?
  • Does the present wide-scale use of delegated authority exceed the ability of Congress to provide proper oversight?  The resolution, HJ37, will be a key test of that ability.
The House resolution of disapproval has been dismissed as just politics.  Of course it's politics -- any public debate is politics.  When three hundred members of Congress signed letters of opposition to FCC internet regulation, that was politics.  When 95 candidates in the last election pledged support of internet regulation, and when all 95 lost, that was also politics.

The House has passed HJ-37 and the focus will shift to the Senate.  Now  your senators will be asked the question: will internet policy be the responsibility of elected senators, or will it be appointed agency bureaucrats?
In the House, HJ37, the resolution to disapprove the FCC action, has been approved on a floor vote of: 238 to 174.  Last December, under cover of the holidays and the spectacle of the lame duck Congress, the Federal Communications Commission (FCC) defied a federal court and enacted an internet regulatory takeover.  In answer, the House began moving House Joint Resolution 37 through committee.  The resolution will cancel the FCC rulemaking and bring the policy discussion back to Congress.

Thus, the FCC and the House of Representatives have begun a classic Separation of Powers struggle.  The debate involves a simple yet critical question: is policy established by an elected Congress or imposed by appointed agency bureaucrats? 

The short history

The FCC action became an issue after Comcast was involved in a dispute with BitTorrent applications.  Certainly, the controversy had every potential of becoming a marketing nightmare for Comcast.  No business wants a reputation of shortchanging its customers.  The dispute ended with an agreement between Comcast and BitTorrent

In spite of competitive market forces at work, the FCC solution was to assert jurisdiction over the internet.  Comcast in turn challenged the FCC in court, while senators and representatives of both parties publicly questioned the FCC action.  This should have been taken as a signal to the FCC to go slow and take care.

The issue came to a head when a three-judge appeals court panel unanimously overturned the FCC.  The court opinion ruled that the FCC did not have statutory authority.  In this situation, agencies generally ask for new authority from Congress, or, if the issue is not so important, they let it drop.  The FCC made a third choice.  Ignoring the court and Congress, the FCC reclassified broadband internet access into a telephone service under rules designed for a monopoly that no longer exists.

The separation of powers struggle

The Framers of the Constitution understood the necessity of preventing the concentration of power in one pair or group of hands.  They chose a system of checks and balances that divided enumerated powers among the three branches of government. 

Congress has the constitutional power to establish policy and write laws.  Often, Congress may lend or delegate authority to agencies to write rules.  In the case of the FCC, Congress does not wish to be bogged down in technical rules, and those tasks are delegated to the appointed FCC administrators, who make rule decisions on behalf of Congress -- decisions often unknown to the public.

Congress conducts oversight of agency rules under the Congressional Review Act.  Procedurally, what happens is that Congress passes a resolution of disapproval.  The resolution bypasses the Senate Majority Leader.  Only thirty senators are needed to force a floor vote that would require 51 votes to pass.

In the House, HJ37, the resolution to disapprove the FCC action, has moved to the floor on a path to adoption by the House.  Yahoo news reported the political situation this way:

Probably more to the point: The FCC is, in a nutshell, attempting to wrest control from the legislative and judiciary branches.  Democrat or Republican, not a lot of politicians are likely to be itching to jump on that wagon.

A second front in the separation of powers struggle has now opened up.  The FCC December rulemaking, which was taken in spite of previous court rulings, has spawned further court action reported in the Wall Street Journal:

In January, phone companies Verizon Communications Inc. and MetroPCS Communications Inc. sued to overturn the net-neutrality rules in a federal appeals court, and more lawsuits are expected after the FCC formally publishes the new rules.

The courts have since dismissed the Verizon and MetroPCS suits because they were filed before the FCC action was published in the Federal Register. Verizon is expected to re-file its lawsuit. 

Meanwhile the FCC continues its attempt to expand its power.  Last Thursday (4-7-11) the FCC moved to impose regulation on the wireless Internet.  Just the same we see the clash as the House and courts resist the FCC attempts to take control.  This is political competition playing out among branches of government, just as the Founders had in mind. 

The policy debate we should have -- why does it matter?

As I said at the beginning, we have a simple yet critical question.  Is policy established by an elected Congress or imposed by appointed agency bureaucrats?

Tim Wu, the Free Press Lobby, and its founder, Robert McChesney, have been actively lobbying for FCC involvement in content regulation for more than five years.  McChesney was candid when he said, "What we want to have in the U.S. and in every society is an Internet that is not private property, but a public utility."  A PUD, of course, is a government-operated utility, although traditionally, these have been small and local districts. 

Other than a few blogs and specialty publications such as this City Journal article, coverage of the lobbying effort went largely unnoticed in the legacy media.  As Angelo Codevilla observed:

The bureaucrats do not enforce the rules themselves so much as whatever "agency policy" they choose to draw from them in any given case. If you protest any "agency policy" you will be informed that it was formulated with input from "the public." But not from the likes of you.

The policy discussion belongs in its proper venue of Congress and under the sunlight of public view.  Here are just some of the questions open to public debate:

  • What are the limits of FCC statutory authority?
  • Which of the three logical choices does the public want?
    1. A private monopoly internet that is government-regulated?
    2. A competitive free market of multiple vendors policed for criminal activity following the rule of law?
    3. A monopoly, government-operated internet?
  • Does the present wide-scale use of delegated authority exceed the ability of Congress to provide proper oversight?  The resolution, HJ37, will be a key test of that ability.
The House resolution of disapproval has been dismissed as just politics.  Of course it's politics -- any public debate is politics.  When three hundred members of Congress signed letters of opposition to FCC internet regulation, that was politics.  When 95 candidates in the last election pledged support of internet regulation, and when all 95 lost, that was also politics.

The House has passed HJ-37 and the focus will shift to the Senate.  Now  your senators will be asked the question: will internet policy be the responsibility of elected senators, or will it be appointed agency bureaucrats?