Net Neutrality heads for an uncertain future in the courts.
February 26, 2015
In a vote along party lines, the Federal Communications Commission (FCC) approved what amounts to a government takeover of the Internet. FCC Chairman Tom Wheeler and his fellow Democrats, Mignon Clyburn and Jessica Rosenworcel, approved placing the Internet under Title II regulations. They will reclassify broadband as a telecommunications service, and regulate Internet Service Providers (ISPs) like utility companies, or “common carriers,” rather than “information services” that remain outside the agency’s regulatory power. Republican commissioners Ajit Pai and Michael O’Rielly dissented, with Pai explaining that net neutrality is "a solution that won't work to a problem that doesn't exist.”
The arrogance of Wheeler and his allies has been evident for some time. The 332-page proposal they approved was never made available to the public or Congress prior to the vote, even as Wheeler ignored pleas by Pai and O’Rielly to do so. “We respectfully request that FCC leadership immediately release the 332-page Internet regulation plan publicly and allow the American people a reasonable period of not less than 30 days to carefully study it,” they said in a statement released Monday.
Wheeler also ignored a similar request Wednesday to testify before the House Oversight Committee, eliciting condemnation from Committee Chairman, Rep. Jason Chaffetz (R-UT), and Energy and Commerce Committee Chairman Fred Upton (R-MI). “So long as the chairman continues to insist on secrecy, we will continue calling for more transparency and accountability at the commission,” Chaffetz and Upton said in a statement. “Chairman Wheeler and the FCC are not above Congress.”
Maybe not, but once again Republicans have made it clear they don’t have the stomach for a fight. Despite being virtually assured of yesterday’s outcome, they quietly surrendered,
abandoning plans to come up with legislation that would have blocked this power grab. Even worse, they blamed their impotency on Democrats. “The Democrats have been pushed away from negotiating with us,” Senate Commerce Committee Chairman John Thune (R-SD) insisted. He also accused the Obama administration and FCC officials of convincing Democrats not to talk to his party about any proposed legislation until after the vote had transpired.
Thune acknowledged the transparently obvious reality that after-the-fact legislation would be difficult to engender. “It gets more complicated, in my opinion,” he said. “That is what I told Democrats. Yes, you can wait until the 26th, but you are going to lose critical mass that I think is necessary to help with an alternative once the FCC acts.”
Thune is emblematic of a Republican party delusional enough to believe the party of expanding government would vote to limit that expansion, while he and his fellow GOPers have missed another opportunity to put a bill on Obama’s desk. While it is certain Obama would veto any measures to rein in the FCC, given his statement last November advocating net neutrality, Republicans apparently remain maddeningly unwilling to recognize the long-term political advantages of further defining the president as the constitutionally-challenged statist he truly is. Even their supposed investigations into whether the Obama improperly influenced the FCC's net-neutrality proposal remain in limbo. Once again as it is with immigration, Republicans believe the appearance of a fight is tantamount to having one.
The implications of this decision are more far-reaching than most Americans might imagine. On Wednesday Thune warned that the FCC’s move could make it harder to prevent authoritarian regimes like Russia and China from exercising increasing control over the Internet, using the United Nations' International Telecommunications Union (ITU) as their vehicle. The U.S. has consistently argued that the Internet is not a "telecommunication service" and therefore outside of the authority of the ITU. "How do you prevent ITU involvement when you're pushing to reclassify the Internet under Title II of the Communications Act, and is everyone aware of that inherent contradiction?” Thune asked prior to the FCC vote. David Gross, a partner at the law firm Wiley Rein, and former ambassador to the ITU during the George W. Bush administration, agreed. He insisted the contradiction would undoubtedly make the job of my successors “much more complicated.”
Larry Strickling, the Commerce Department's assistant secretary for communications and information disagreed, insisting Thune’s warning was not as “stark” as his description suggested. And while he admitted that China and Russia are actively seeking more Internet control through the U.N., there is no contradiction between net neutrality and opposing such power grabs. "I fundamentally don't think this will change matters going forward," Strickling said. "The United States is opposed to intergovernmental resolution to these Internet issues. We will remain opposed to that.”
Really? Then why did the Obama administration relinquish
control of the Internet Corporation for Assigned Names and Numbers (ICANN) that manages Internet infrastructure to the so-called “global community” last March? Prior to that relinquishment the U.S. had always played the principal role in maintaining the master database for domain names, the assignment of Internet protocol addresses and other critical Web functions known as the the Internet Assigned Numbers Authority (IANA). Under the previous contract that expires next September, nations could only suppress Internet content, not the registration of domain names. If those parameters change, domain name registry could be censored under the auspices of protecting one’s national sovereignty.
The ICANN Board of Directors insists any changes in the status quo will be approved by a "multi-stakeholder community” consisting of both private and government entities, but who’s kidding whom? How many private entities would be willing to go toe-to-toe with Vladimir Putin if he decided to institute another Internet blackout similar to the one he inflicted on a number of Internet sites in the Russian Federation prior to secession vote in Crimea?
Immediately following yesterday's vote, Wheeler tried to diffuse criticism. “No one, whether government or corporate, should control free and open access to the Internet,” he declared. “The Internet is too important to allow broadband providers to make the rules,” adding it was nonsense to characterize this effort as a secret plan to regulate the Internet. “This plan is no more a plan to regulate the Internet than the First Amendment is a plan to regulate free speech,” he insisted.
Quite simply, that is a lie. Title II is a series of requirements imposed by government on Internet Service Providers (ISPs) that prevent them from blocking or throttling applications and websites, and charging them for prioritized access to consumers. It also allows the FCC to impose fines on companies found to be employing "unreasonable" business practices—as defined by the FCC itself. And while the agency promises it won’t impose price controls, Title II allows it to do so. In short, net neutrality is nothing less than the Obama administration’s determination to impose “social justice” on private companies because it would be “unfair” for them to treat some customers (read less profitable) less favorably other customers (read more profitable).
There is little doubt the pernicious assumption underlying this effort is that Internet accessibility is a “right” rather than a privilege. A right that demands a radical egalitarian imposition of government controls, preventing companies from deciding who their most valuable customers are. It would be akin to the Obama administration demanding that every car manufactured in the United States be "no better or worse" than an Chevrolet Impala, because those who had the wherewithal to purchase a Lexus would get a car with better acceleration, thereby undermining Americans’ "equal access” to a thruway.
Moreover, despite everything this administration, Democrats and their leftist media allies might say, the Internet has been a triumph of innovation and expansion for decades without the kind of limitations the FCC is now imposing. And that, in and of itself, is the genuine reality that grates against progressive instincts: there must be no such brilliance and innovation that remains beyond the yoke of government, lest the "greater good,” as it is defined by those very same statists, be so transparently threatened.
That mindset is illuminated in a column written by net neutrality advocate Malkia Cyril, founder and executive director of the Oakland-based Center for Media Justice. It is entitled, "Only net neutrality can protect the internet from becoming like TV: white, middle-class and exclusive.” And like the reliable progressive she is, Cyril can’t resist framing the net neutrality issue in those oh-so familiar terms. "If we lose that vote, the most democratic communications platform the world has ever seen could become more like cable TV, a fairly scary place that reproduces the economic gaps and racial hierarchies of the offline world,” she laments. She goes on to insist that "equal representation in a digital economy and 21st century democracy demands net neutrality protections.”
Is there anything more typically progressive than a system of governance that imposes “demands” on the risk-taking, hard work and innovations of others?
In her remarks, Commissioner Clyburn said the “framers” of America's Constitution “would be pleased” with the FCC’s plan. Really? A plan kept completely secret until after it was voted on? One that imposes government controls where there were none before? Commissioner O’Rielly was far more accurate. “I see no need for net neutrality rules,” he said, adding that the FCC’s decision amounted to a “monumental and unlawful power grab.”
Next stop, the courts. The most recent decision on net neutrality was the DC Circuit Court ruling on Verizon v. FCC, vacating a de facto effort to impose net neutrality. The effort failed precisely because ISPs were not defined as common carriers and remained beyond the FCC’s power to regulate them. Yesterday’s vote changes that equation, but ISPs will litigate on the basis that the ruling constitutes dangerous government overreach. It is an overreach made possible by an out-of-control administration, and its Democrat allies—both of whom are being aided and abetted by a deer-in-the-headlights Republican Party. Whether liberty itself can survive such a toxic mix remains to be seen.
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