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When a Republican majority takes over at the Federal Communications Commission on Jan. 20, expect an immediate and profound regulatory mindset reset to reasoned, fact-based decision-making and regulatory humility.
No longer will the FCC be the institution where a majority imagines it largely can unilaterally do anything it wants, without regard to the facts, economics, competition, the statute, Congress, or due process.
Why does an FCC return to reason, facts, and the statute mean so much and reflect such a big change? That’s because a dearth of reason, facts, and statute, was the hallmark and ultimate source of most all of the controversy and illegitimacy this FCC has caused with its serial, 3-2, empire-building policies that unilaterally modernized communications law, re-imagined competition policy beyond recognition, and power-grabbed the Federal Trade Commission’s jurisdiction.
While many naturally want to fast-forward to endgames, like when and how the FCC’s Title II reclassification of broadband and net neutrality will be dismantled, it is important to put first things first — reason, facts and the statute — to see how vulnerable the FCC’s most controversial decisions are when exposed to real scrutiny.
To start, anyone who closely follows Republican FCC Commissioners Ajit Pai and Michael O’Rielly knows they have disagreed with the FCC’s many overreaches based on the merits: scantest facts of any consumer problem; no competition conclusion rigor; “economics-free” analyses; no direct statutory authority; and disregard for due process.
Consider the house-of-cards assumptions levitating the FCC’s Title II reclassification of broadband order.
The current FCC majority re-imagined that the nearly-unanimous passed 1996 Telecommunications Act, which mandated a transition from monopoly rate regulation to de-regulatory competition policy, authorized the FCC to use the Act to do the exact opposite of its original purpose – to re-impose monopoly rate regulation on the competitive companies that the Telecom Act by design, successfully created!
No good deed goes unpunished.
And they justified it based on a sweeping and completely different regulatory paradigm, net neutrality, that is not found in the law and that actually directly contradicts Congress’ clearly stated “policy of the United States to preserve the… competitive free market… Internet… unfettered by Federal or State regulation.”
On top of that the FCC re-imagined a clearly deregulatory provision in the 1996 Telecom Act, (Section 706), to be the opposite, a source of sweeping new direct regulatory authority to do most whatever the FCC wants.
To pull off all this fantastical reimagining that the Telecom Act was not about promoting competition, but re-regulating competitive companies as monopolies, the FCC, as the supposed “expert” agency has for several years refused to make any conclusions that the wireless and video industries were competitive or not in their mandated annual competition reports to Congress.
And the FCC also capriciously changed the FCC’s methodology for measuring the state of broadband competitiveness by increasing the expected broadband competition speed by 525 percent from 4Mbps to 25Mbps just one month before the FCC voted on its order to reclassify broadband as a Title II utility monopoly.
The reason the FCC did this is that they knew the data was overwhelming that the underlying wireless and video markets were and are competitive and among the most competitive in the world.
Reason, facts, and the statutes don’t support the many controversial rulings the current FCC majority has made.
In short, as the new Republican-controlled Congress proceeds to consider a statutory net neutrality fix and an update of the Communications Act, it could be constructive for the new Trump FCC majority to set the record straight and formally report to Congress what the FCC Chairman and commissioners conclusions are at this point concerning the competitiveness of various markets and the legitimacy of net neutrality based on reason, the facts, and the statute.
Proponents of utility regulation of ISPs to impose net neutrality know full well their position is weakest if the measures are reason, the facts and the statute.
Let reason rule.
[Originally Published at the Hill]