2015 November

Is Net Neutrality ‘The Law’ Or ‘The Great Internet Power Grab’?

Posted by | Broadband Internet, Net Neutrality Series 2.0, Regulatory State | No Comments

Sometime in the next several months, a federal appellate court will choose between two narratives used to describe the Federal Communications Commission’s (FCC) decision earlier this year to regulate the Internet as a public utility using “net neutrality” rules:

  1. Was the FCC simply implementing the law as Congress had always intended; or
  2. Was net neutrality a ploy for an Internet power grab by three unelected bureaucrats?

A twitter conversation with net neutrality proponent Matt Wood, policy director at Free Press, indicates that the FCC’s version of “net neutrality” is the government’s “great Internet power grab.” The law does not require the FCC to regulate the Internet as public utility, and in the view of net neutrality opponents, the law does not even permit the FCC to do so. To the extent Congress has expressly addressed the “Internet” in the Communications Act, the law states, “It is the policy of the United States . . . to preserve the vibrant and competitive free market that [previously] exist[ed] for the Internet and other interactive computer services, unfettered by Federal or State regulation.”

This truth is the reason that Free Press is so vehement about its disingenuous suggestion that “the law” has always required the FCC to regulate the Internet as a public utility. Read More

What Does ‘Competition’ Mean At The FCC?

Posted by | Regulatory State, Wireless | No Comments

The question I would ask Federal Communications Commission Chairman Tom Wheeler at tomorrow’s congressional oversight hearing is, how does the agency define “competition”? The answer to this one question—the FCC does not have a definition of competition that it applies consistently—is a symbol of everything that is wrong with the agency.

Chairman Wheeler chose “competition, competition, competition” as his guiding principle without defining what “competition” means at the FCC. Relying on a guiding principle with no specified meaning is like steering a ship with no rudder: There is no telling where the ship (FCC) will end up after it leaves port (e.g., initiates a new regulatory proceeding).

The FCC’s rudderless approach to competition results in discriminatory regulations that erode public trust in the agency’s impartiality and the rule of law. For example, scholars on both sides of the aisle have long recognized that the FCC’s use of its merger authority “lead[s] to one set of rules for those who have merged and another set of rules for similarly situated parties who have not.” Even worse, discriminatory regulations that are adopted in the name of “competition” during FCC merger review are not practically subject to judicial review. Read More