Posts Tagged ‘Robert McDowell’

DECEMBER 30, 2010

The Wall Street Journal

The FCC’s new Web power grab deserves a vote under the Congressional Review Act

On the eve of Christmas Eve, while you probably weren’t paying attention, the Obama Administration released the text of its new Internet regulations, which mark a significant pivot from the hands-off approach to the Web observed by previous Republican and Democratic Administrations.

Federal Communications Commission Chairman Julius Genachowski delayed the release of the “net neutrality” order so he could incorporate rebuttals to the two dissenting commissioners, Robert McDowell and Meredith Baker, who argued that the new regulations are unnecessary and outside the agency’s purview. The closer you inspect Mr. Genachowski’s justifications for his FCC power grab, the weaker they look.

The Chairman cites, for example, several instances in which an Internet service provider has been accused of blocking an application that was slowing traffic on its network. But in each case the issue has been resolved to the satisfaction of everyone involved using existing law. Given the countless opportunities for such antics, the news is that the FCC can produce so few examples of alleged misbehavior.

Telecom is no different from other industries with a potential for market concentration and monopoly abuse, but the Sherman Act, the Federal Trade Commission and sundry consumer protection laws already exist to police such behavior. Nowhere in his document does Mr. Genachowski explain why these and other statutes are insufficient checks on Comcast, Verizon, AT&T and other Internet service providers.

Mr. Genachowski also continues to insist that the FCC has “ancillary” jurisdiction over the Internet under the Telecommunications Act of 1996, notwithstanding a federal court decision earlier this year that said the law grants the agency no such regulatory authority. “Were we to accept that theory of ancillary authority,” wrote the D.C. Circuit Court of Appeals in April, “we see no reason why the Commission would have to stop there, for we can think of few examples of regulations that [the Commission] . . . would be unable to impose upon Internet service providers.”

The FCC’s brazen power grab is already producing a welcome backlash on Capitol Hill. GOP Representative Marsha Blackburn says she’ll introduce legislation to prohibit the FCC from enforcing net neutrality rules. And Senate Commerce Committee Ranking Member Kay Bailey Hutchison plans to introduce a “resolution of disapproval” under the Congressional Review Act, which allows Congress to overturn regulatory agency orders with a simple majority in the House and Senate.

The Congressional Review Act could get a workout over the next two years if President Obama tries to use regulatory agencies—the Environmental Protection Agency, the Food and Drug Administration, the Centers for Medicare and Medicaid Services—to achieve the policies he can’t get through Congress. Mr. Genachowski’s Internet coup would be a good place to start.

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