“The FCC did not have the statutory authority to do what it did” On Net Neutrality, Says Departing FCC Commissioner

1aeddeparting fcc chair julius gen “The FCC did not have the statutory authority to do what it did” On Net Neutrality, Says Departing FCC Commissioner

The biggest failure of the
Federal Communications Commission (FCC) under President Obama, says
departing FCC Commissioner Robert McDowell, was the long push to
regulate Internet traffic management via net neutrality rules. The
net neutrality push, which consumed the agency during 2009 and
2010, was a major initiative under Chairman Julius Genachowski, a
campaign fundraiser and law-school classmate picked by the
president to be the nation’s top tech regulator. ;
Both Genachowski and McDowell announced last week that they
would be leaving their commission posts.

In an exit interview with Ars Technica, McDowell, a Republican
appointee who became a commissioner under President Bush,
reiterated his case against the Internet traffic rules:

“First of all, I’ve been a strong advocate for a free and open
Internet. What I opposed really focused on, first of all, there is
no market failure that needed to be addressed. Second, the FCC did
not have the statutory authority to do what it did. Third, if there
had been a problem there were laws already on the books that would
have addressed the problem. There wasn’t a problem before the rules
and there’s not a problem with any danger of a closed Internet in
this country after the rules. For those who think the rules have
preserved an open Internet, that’s sort of like a rooster taking
credit for the sunrise.”

These are the important points about net neutrality: It’s not
necessary, and it’s probably not legal. ;
The policy’s backers could never point to more than a tiny handful
of concrete examples of violations they wanted to prevent — the FCC
named
just four in its order, one of which was dismissed by a court
and another of which did not ever result in a formal complaint. It
was a solution in search of a problem.
And it was a solution that the FCC did not have explicit
authority to pass. As a D.C. circuit judge pointed
out when the agency attempted to justify its original net
neutrality guidelines — which were held merely as policy principles
rather than actual rules — the FCC’s lawyers could not point to any
statute explicitly giving them the power to regulate Internet
traffic. The court eventually ruled
against the FCC on the grounds that it was trying to enforce
non-binding policy principles rather than actual regulations. The
court’s ruling left open the possibility that explicit rules might
be legal, however, so the agency went ahead and passed explicit
rules (McDowell voted against the rules). But those rules still
lack statutory backing, which is why they are
now being challenged ;again in court. ;
I chronicled the story of the push to pass net neutrality rules
in Reason’s March 2011
issue. ;

Taken from:

“The FCC did not have the statutory authority to do what it did” On Net Neutrality, Says Departing FCC Commissioner

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