January 31 2011

The Battle over Net Neutrality Continues

The Battle over net neutrality regulations is far from over.

In light of two lawsuits filed against the Federal Communication Commission's (FCC) rules to govern Internet network providers- so-called net neutrality-the FCC is doing everything it can to keep the case out of the DC Circuit court where they are poised to be overturned.

At the same time, Democrats, who favor net neutrality regulations, are introducing legislation to retroactively authorize the FCC's power grab by creating a new section in Title II of the Communications Act that would give authority to the FCC to regulate broadband in similar ways it currently regulates telephone service.

The FCC claims that the two lawsuits filed against its net neutrality rules were filed prematurely, before the regulations were published in the federal register. Thus, the FCC wants the charges dismissed. Prematurely, or not, the main reason the FCC wants the lawsuits dismissed from the DC Circuit court is that this very same court ruled in April that the FCC had only limited authority to regulate network management.

MetroPCS followed Verizon's lead in suing the FCC over net neutrality regulations this January. Verizon decided to sue, because in the words of Verizon senior Vice-President Michael E. Glover:

We are deeply concerned by the FCC's assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself.  We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers.

The FCC vote to issue rules to govern the network management of the Internet infrastructure is clearly a case of regulatory overreach, in defiance of Congress, the courts, and the will of the people. Far from solving a systemic problem that calls for government intervention, the FCC vote to preemptively regulate network management is the result of a well-organized, well-funded effort by special interest groups to give big government more power over our communications media.

Larry Downes explains in his Slate article, titled Save the Internet By Doing Nothing how Internet regulations stifle innovation:

By design, democratic governments innovate slowly, incrementally, and deliberatively. But when that approach is applied to an ecosystem that expands and evolves at accelerating speeds, laws aimed at controlling the technology or how it's used become quickly outdated. And that's just the best-case scenario. Often, instantly-anachronistic regulations lead to unintended consequences, warping or even stunting the development of new applications and products that weren't even on the drawing boards when the legislating started.

The battle over net neutrality regulations has more potential for success in the courts than in Congress.  

Legislation introduced by Representative Marsha Blackburn (R-Tenn.) to formally establish that the FCC has no authority to regulate broadband likely stands on the same shaky legs as counter-legislation introduced by Senator Maria Cantwell (D-Wash) to authorize the FCC to regulate broadband. While the Republican-controlled House has vowed to take down net neutrality regulations, Republicans lack a majority in the Senate. Even if Republicans succeeded in both chambers, getting the bill signed into law by President Obama would be a challenge, because the President is an out-spoken supporter of the new FCC regulations.  

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