It’s been a bad week for the rule of law. First, President Obama — without any apparent legal authority — “informs” BP that it is to hand over $20 billion into an escrow fund, or else. Not to be outdone, the Federal Communications Commission this morning voted 3-2 to take the first steps toward regulating the Internet. The decision comes only two months after a federal court — rather definitively – ruled that the agency had no authority to do take that step.
Specifically, the D.C. Circuit Court of Appeals ruled in April that the Communications Act only allows the FCC to regulate “telecommunications” service.” And, since the agency has earlier concluded that broadband Internet service was NOT “telecommunications,” that means — the court decided — the FCC generally could not regulate broadband. So how does the FCC, led by Chairman Julius Genachowski, propose to get around that problem? By re-defining broadband as a “telecommunications service,” after all.
Never mind that the initial classification of broadband was the result of a years-long inquiry by the Commission. The FCC (or at least 3 out of its 5 members) wants to regulate broadband. And if only telecommunications can be regulated, then its telecommunications. It’s reminiscent of Lewis Carroll’s Humpty-Dumpty, who famously said: “when I use a word, it means just what I choose it to mean — neither more nor less.”
It’s more than a linguistic battle. If adopted, the change would open the way for the Commission to impose so-called “net neutrality” rules, limiting how owners of broadband networks can manage the traffic they carry. The result could be grim. According to one study released just this week, neutrality rules could cost the economy up to 600,000 jobs and $80 billion dollars.
Today’s decision is a first step along that road. Specifically, the commission launched a formal inquiry into re-classifying broadband. Its not clear, however, when Chairman Genachowski will move to finalize the reclassification. Opposition to the plan has been fierce — not just from the firms to be regulated, but from members of Congress, including many Democrats. All told, some 291 members have expressed concerns about the proposal — seeing not just economic harm, but a threat to their role as lawmakers. Moreover, once a decision is finalized, it will still face scrutiny by the courts, which are apt to look at such linguistic gerrymandering skeptically.
All of this, however, could take years. And in the meantime, Internet providers and users will face uncertainty over the future of their services and their investments. The question now, as Lewis Carroll would put it, is how do we get out of this rabbit hole?