On September 25, the Mercatus Center, a research and outreach organization that promotes market-oriented solutions from George Mason University, did a presentation on net neutrality. The speaker, research fellow in the technology policy program Brent Skorup, gave a wide overview of the net neutrality subject. Skorup discussed, among other things, how the Internet works, the working definition of net neutrality, exceptions to the rule, and the options the FCC is exploring.
Nothing has changed my mind that it would be “unthinkable” for the FCC to classify Internet service providers as common carriers under Title II of the Communications Act, the part of the 1934 communications law derived directly from the Interstate Commerce Act of 1887. The purpose of the Interstate Commerce Act was to constrain what was then seen as the monopolistic power of the railroads. The railroads were deregulated in the 1980s – long before the emergence today’s broadband Internet providers.
Currently the FCC is considering reversing the legal status of American Internet services from lightly-regulated information services to utility-regulated “telecommunications” services in response to a 2014 appeals court decision that limited a portion of the FCC’s net neutrality regulatory authority.
Rep. Henry Waxman, Ranking Member of the House Energy and Commerce Committee,wrote the FCC to propose that the FCC, in its pending Open Internet order remand, “reclassif[y] broadband providers as telecommunications services and then using the modern [Title I] authority of section 706 to set bright-line rules to prevent blocking, throttling, and paid prioritization.”
Recently two towns, Chattanooga, Tennessee, and the City of Wilson, North Carolina, have petitioned the federal government, via the FCC, complaining that state laws are constraining them from the municipal provision of broadband services, that is, from building a government owned network (GON). That is, these municipalities want to expend resources to build and operate broadband systems, without following any of regulations that govern private sector providers. To overcome the state’s rightful authority the city governments have proposed that the FCC preempt state law and empower municipalities in ways that upset the political structure of the U.S.
The FCC’s invitation has prompted a “rainbow of policy and legal proposals” that would explore “new ideas for protecting and promoting the open Internet” by imposing Title II telecommunications regulation on America’s Internet infrastructure.
The FTC implicitly laid down an important jurisdictional, political, and public marker against FCC reclassification of broadband as a utility, in its recent FCC filing in the FCC’s Section 706 inquiry proceeding.
Is the Internet consumer in charge or the product sold to others? Is net neutrality about protecting consumers or Silicon Valley?
We’ll learn the answers to these critical questions in the coming months when the FCC votes on a redo of its “Open Internet” order implementing net neutrality.
There are two core reasons the FCC should not try to preempt State muni-broadband laws.
1. The Supreme Court has already indicated it would be unconstitutional.
2. It would be anti-competitive, the opposite of the FCC’s statutory purpose and legal mandate.
The Daily Record reports that the Maryland Public Service Commission ruled that Uber is a common carrier subject to its regulatory jurisdiction. The PSC stated: “[W]hen viewed in their totality, the undisputed facts and circumstances in this case make it clear that Uber is engaged in the public transportation of persons for hire. Thus, Uber is a common carrier and a public service company over whom the Commission has jurisdiction…”
The myriad executive branch Departments, Agencies, Commissions and Boards have been in omni-directional fashion vastly exceeding their authority – doing things that are clearly the Constitutional purview of (amongst other others) the legislative and judicial branches.
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Watching the FCC attempt to construct net neutrality regulations to lord over the Internet is a bit like watching a child build a sand castle and declare himself king of the beach. Neither has really created a kingdom, but at least the latter is cute.