The FCC is Illegally Rewriting the Communications Act

Today, the Federal Communications Commission released new net neutrality rules in a 400-page order that prompted lengthy, detailed dissents from Commissioners Pai and O’Rielly. ICLE’s Geoffrey Manne and TechFreedom’s Berin Szoka respond:

This order represents the triumph of political forces over sound policymaking, said TechFreedom President Berin Szoka. It effectively destroys nearly 18 years of bipartisan consensus. It’s a radical break even from the FCC’s proposed rules. In fact, the entire rulemaking may founder in court simply because Wheeler refused to issue a further NPRM to adequately develop the record. Politicization of the process may also cost the FCC the deference agencies usually enjoy when they’ve followed normal processes.

Essentially, the FCC is saying, ˜just trust us,’ said ICLE Executive Director Geoffrey Manne. But the Order is brimming with reasons not to. Perhaps the Order’s most astonishing admission is that the FCC intends to use its newly asserted authority under Title II not only to ensure, as it claims throughout in the Order, the ability to protect an open Internet, but also to saddle broadband providers and other services with whatever other regulations in Title II the FCC deems appropriate. This sly caveat, buried deep in the Order, nullifies the FCC’s fevered assurances that it will preserve the light touch approach begun under President Clinton.

The FCC is effectively, and illegally, rewriting the Communications Act, argued Szoka. The Order mentions ˜tailoring’ in one form or another 77 times, but doesn’t reference even once the Supreme Court’s decision last year holding that such radical tailoring is a job for Congress, not regulators. The Order allows the FCC to go much, much further than it has gone today ” but also to do the opposite. We’re now just one presidential election away from Republicans using the FCC’s new standard of ˜forbearance without evidence’ to gut not just net neutrality rules, but the entire Act. To say that opening the door to such political ping-pong brings ˜certainty’ makes a mockery of the word. The only way to restore sanity at the FCC is for Congress to finally update the Communications Act.

The FCC has never gotten far enough in court to face the significant Constitutional arguments against its power grab, concluded Manne. But the Order reveals the weakness of the FCC’s First Amendment arguments. The FCC justifies its expansive interpretation of Sections 201 and 202 by claiming that broader rules will ˜remove ambiguity.’ But such an approach is decidedly not ˜no more burdensome than necessary,’ as First Amendment review requires. In fact, the FCC admits that its claimed authority grants the agency the nearly unfettered discretion to issue future rules. That is does so while disclaiming any need to justify such future rules under Title II today portends a dire future for free expression on the Internet as the FCC embarks on this regulatory slippery slope.

We can be reached for comment at [email protected]. See more of our work on net neutrality and Title II, including:

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