Obama Administration’s Internet Seizure in Court This Week

The Internet has been a great boon to prosperity and creativity through what the Wall Street Journal's Gordon Crovitz calls "20 years of permissionless innovation."

But permissionless anything doesn't sit well with bureaucrats and those who love them.  Thus the Obama administration decided it was high time to end this freedom through heavy regulation.

An appeals court in Washington this week will weigh what the Obama administration has done when it considers a case called U.S. Telecom versus FCC. As Crovitz summs it up:

Now judges will decide, in U.S. Telecom Association v. FCC, if anyone can ever again launch a website, app or new product without having to beg a bureaucrat.

Tom Wheeler, the Obama appointment to the FCC, who has led the administration's power grab, thought he was making the case for regulation of the Internet–but was doing just the opposite recently:

The Federal Communications Commission chairman himself last week made the case for invalidating Obamanet. Asked at a news conference whether regulators would approve a new low-priced plan from T-Mobile, Tom Wheeler said yes, adding, “I also kind of chuckle at the fact that as we were debating the open Internet, everybody was saying, ‘Oh, this is going to thwart innovation, it’s going to be terrible. People are going to have to come to the FCC to say, “Mother, may I?” before they do anything in the market.’ Well that certainly didn’t happen here.”

Of course it did. Mother Wheeler said You may—though that became maybe when he added: “What we’re going to be doing is watching the Binge On product, keeping an eye on it, and to measure it against the general conduct rule.” Republican commissioner Ajit Pai warned T-Mobile not to assume anything: “I don’t think it should give any company comfort to know that the state of the law is so unsettled.”

T-Mobile’s Binge On benefits consumers by giving them low-priced unlimited access to 24 video services, including Netflix, HBO and ESPN. This package is aimed at cost-conscious people who don’t have broadband. Net neutrality absolutists hate the idea, known as “zero rating.” Susan Crawford, a former Obama special assistant for science, technology, and innovation policy, has written that it “is pernicious; it’s dangerous; it’s malignant.”

U.S. policy is supposed to “preserve the vibrant and competitive free market” for the Internet, according to the Telecommunications Act of 1996, “unfettered by federal or state regulation.” That mandate reflects the governmental humility that prevailed across party lines at the launch of the commercial Internet.

But the White House last year decided “net neutrality” was good politics.

Net neutrality, by the way, is only neutral if you think bureaucrats ruling on and regulating innovation is somehow characterized by objectivity. To achieve this form of neutrality, the administration convinced Wheeler to embrace the notion that the wildly diverse Internet was a monopoly that had to be regulated like railroads in the 1880s and the phone in the 1930s.

Strong-armed by the White House, the agency rushed out more than 300 pages of slapdash regulations. Among the legal objections the appeals court will consider is that letting the FCC decide what is “fair” and “reasonable” violates the plain wording of the Telecommunications Act; that the agency’s new “Internet conduct standard” is so vague it exceeds the agency’s authority; that the White House’s intervention violated separation of powers and the notice period for new regulations; and the rules violate First Amendment protections for free speech by letting regulators decide what content broadband providers can and can’t make available.

It is truly Orwellian to propose that more regulations of the Internet mean greater neutrality–there has never been anything as open and conducive to creativity as the Internet; nor has any form of communicaion ever been more neutral with regards to who uses it. The Internet has been a success because it has not been hampered by bureaucrats. Obviously, the Obama administration supports making the Internet as sluggish and bureaucrat-ridden as the rest of the economy. It's what they do.