FCC third way – Shattering the congressional tether
Despite strong bipartisan objections from nearly 65% of congress, the FCC voted to move ahead to take public comments on FCC Chairman Julius Genachowski’s “third way” proposal to reclassify broadband providers under Title II common carrier status. It’s truly amazing how we got to such a state of affairs. The FCC had gotten everything it wanted from Comcast before it even issued a ruling, and the entire reclassification movement is incoherent because it is based on a myth to begin with. The whole thing is a manufactured crisis based on irrational hysteria over the DC Circuit ruling on the Comcast-vs-FCC case.
The misinformation over the DC Circuit ruling is so prevalent that the AP is still repeating the myths:
But in April, the U.S. Court of Appeals for the District of Columbia ruled that this approach does not give the commission the authority it needs to proceed with Genachowski’s plan to adopt so-called “network neutrality” mandates, which would bar broadband providers from favoring or discriminating against traffic traveling over their networks.
But the DC Circuit ruling wasn’t even talking about the “network neutrality” mandates being proposed by the FCC. What the court specifically objected to was the FCC’s sloppy defense against Comcast’s complaint that the FCC “failed to justify exercising jurisdiction”. The court agreed with Comcast by concluding that the FCC:
“failed to tie its assertion of ancillary authority over Comcast’s Internet service to any “statutorily mandated responsibility.”
We should not conclude from this ruling that the DC Circuit “stripped” the FCC of any and all authority over Internet Service Providers (ISPs). In fact, the DC Circuit didn’t even rule that the FCC has no statutory authority over Comcast in the BitTorrent case. What the court ruled was that the FCC failed to come up with a legally sound argument as to why they have authority in the Comcast BitTorrent case. The court even showed deference to the FCC by offering suggestions as to how the FCC could come back with a better argument.
How the FCC botched their defense against Comcast
Aside from starting an unnecessary battle that was already won for the purpose of writing a mean letter to Comcast with no fine, the FCC made two obvious and critical errors in their legal defense against Comcast:
- The FCC argued that it had regulatory authority from section 706a of the Communications Act. But section 706a explicitly states that “Section 706a does not constitute an independent grant of forbearance authority or of authority to employ other regulating methods.”
- The FCC argued that Comcast was blocking Video on Demand (VoD) provider Vuze and that Section 623 of the Communications Act granted the FCC authority to regulate VoD services. However, Section 623 “expressly prohibits the Commission from regulating rates for “video programming offered on a . . . per program basis,” i.e., video-on-demand service.”
Not only is the legal handling of the case baffling, but the accusation from the previous FCC leadership that Comcast blocked Vuze is just outright false because Vuze’s BitTorrent service was never blocked or even materially affected by Comcast’s use of TCP resets. But the myth is so prevalent and oft repeated that the AP reports:
“Indeed, the recent appeals court decision grew out of a challenge by Comcast Corp. to a 2008 FCC order directing the cable company to stop blocking subscribers from accessing an online file-sharing service used to trade video and other big files.”
Commissioner Robert McDowell even stated that the FCC ruling against Comcast would not have stood in an actual court of law. In fact, there was never even a formal signed complaint filed against Comcast. McDowell had asked the complainants three times for a signed statement against Comcast’s actions on BitTorrent and never got it. Comcast’s TCP reset system never blocked subscriber access to Vuze (the principle complainant) because Vuze had its own dedicated seeds for ensuring problem free file transfers. All the accusations against Comcast were based on innuendo with few facts and no actual formal complaint.
USF reform doesn’t depend on reclassification
The other red herring is the claim that the FCC can’t reform the Universal Service Fund (USF) for broadband deployment without reclassifying broadband from an information service under Title I to a telecommunications service under Title II. The same AP story repeats this claim:
The court ruling also potentially undermines the FCC’s ability to act on several key recommendations in its national broadband plan, another top priority for Genachowski. That includes a proposal to expand high-speed Internet access by tapping the Universal Service Fund, the federal program that subsidizes phone service in poor and rural areas.
But the FCC has successfully reformed the USF under the existing Title I classification and there is nothing challenging the FCC’s authority to reform USF.
Flouting congress, the courts, and legal precedent
The courts have ruled many times in favor and against the FCC actions over the years depending on whether the FCC was within its statutory authority. But the reclassification movement acts as if the DC Circuit ruling against the FCC was some earth shaking event that permanently strips the FCC of its authority unless the FCC does something extraordinary to counter it. The reality is that an FCC acting brashly to bypass the court’s ruling would likely result in a nasty rebuke from the courts.
The courts have been very clear that they would reject any power grab by the FCC that would “free the Commission from its congressional tether”. With 74 congressional Democrats signing a letter opposing reclassification and the majority of Republicans opposing reclassification, it’s clear that the FCC doesn’t even have the support of congress much less explicit authority. Furthermore, it appears that the FCC may be violating a legal precedent set in the Midwest Video II case.
In its ruling against the FCC in the Comcast-vs-FCC case, the DC Circuit Court of Appeals recounted:
In Midwest Video II, the Supreme Court rejected the Commission’s assertion of ancillary authority to impose a public access requirement on certain cable channels because doing so would “relegate cable systems . . . to common carrier status.”
So the courts have already ruled in the past that they would reject attempts by the FCC to classify Cable systems as a common carrier, yet the FCC is now considering to do just that and more.
That doesn’t mean much. The 74 Democrats are most likely all Blue Dog corpratists, which means their biggest campaign funders are telcos and their best friend the Chamber of Commerce. Their siding with corporate interests every time out is their defining trait. It’s well understood whose interests they serve and what their primary function is.
The rest represent almost the entire Republican party in Congress, which is obvious and expected since the GOP favors businesses over individuals at every opportunity from health care reform to finance. There wouldn’t be an FCC or any other regulatory agency for that matter if the GOP had its way. They believe that government shouldn’t interfere in the private sector no matter how much it benefits the public for which the government exists to serve.
Which I’m sure you guys are aware of since you clearly trend along those lines.
These are the same people who just tried to gut the Clean Air Act and neuter the EPA. The people who are out there apologizing to BP because it’s so mean and unfair of the government to demand that they pay for cleaning up their own mess. The same people who let AT&T write its own retroactive immunity for spying on us for the NSA and the Bush administration. The same people desperately watering down Wall Street reform.
That a bunch of corrupt politicians sided with their corporate masters is not at all surprising. That is their one and only constituent, their largest source of campaign funds, and the only element that exerts meaningful influence over their votes. It is what these people exist to do and they are richly rewarded for their efforts.
Moreover those 74 Democrats in the House represent only 29% of the total, leaving them in a clear minority in the party.
Regardless of what the business-subservient Republican party wants, they are not in charge of Congress. The American people did not elect them to large majorities to lead this nation. The public knows what it gets with the GOP, large swaths of deregulation and anti-consumer legislation. After decades of deregulation that left Wall Street out of control, based on the last two elections — including that of a pro-regulation President that didn’t exactly hide those beliefs in 2008 — it’s clear that the American people want to try something else for a change.
Paul, there are 282 Congressman that signed a letter opposing reclassification. There are fewer than 40 that signed in favor of it and the remaining undeclared or undecided. It doesn’t really matter how you try to spin this because if that’s not a clear message that congress opposes reclassification, I don’t really know what is.
George,
I laid it out and have yet to see you or anyone else argue that I’m wrong. 74 is just short of the number of Blue Dogs in the House, which are conservative Democrats that are primarily known for taking big contributions from corporate America, and then voting with Republicans (also known for being the primary benefactors of corporate largess) for virtually anything that benefits that constituency.
It is the primary reason they exist as a group and that is their only function.
The rest represent what’s left of the tattered Republican party which automatically opposes any effort by any regulatory agency to create new regulations. Their recent attempt to gut the Clean Air Act and basically neuter the EPA at the behest of energy industry lobbyists is just one of many examples of how that system function.
Of course they oppose it, as I explained and you know as well as I do, conservatives oppose practically all regulation of the private sector simply based on principle. Not because they honestly think it will harm the private sector, or because they think it won’t benefit consumers. The GOP opposes regulation period. Always have, and perhaps they always will.
I think you’ve got more substantive criticism than that, but this bit about a bunch of corrupt politicians signing a meaningless letter that argues against regulating the industry that is amongst the biggest campaign contributors to those signatories is laughable. These people – as I already explained – are the same people that were the biggest recipients of telco dollars, that invited AT&T lobbyists to literally write the telco immunity provisions from the warrantless wiretapping scandal.
I’m not joking. That’s what happens when the people you’re heralding are in charge. They run to the corporations that give them the most money, so that they can win their elections, and then invite those same corporations to literally write the laws that directly affect those companies. These are the same people that over the last few decades took a large and vibrant economy of telecommunications companies and rolled back regulations until they were able to consolidate back into three giant monoliths that everyone seems to loathe with prices that never seem to come down and where practically no real competition exists.
That obviously goes well beyond technology and is hardly a new problem, but that’s my point. You see that letter and then force it into your tech dichotomy so that it supports your beliefs without giving any consideration to who signed it or why.
If these 282 Congressmen actually wanted to stop the FCC from taking this action, why haven’t they introduced legislation to prevent it?
The answer is simple if you spend a minute or two looking at who these people are.
You didn’t do that and neither did CNET (which I don’t find surprising, you aren’t political guys, you’re tech guys.) The results are as predictable as they are telling. As of June 3rd, the GOP signatures in one letter number 171, or about 78% of the sitting Republican party (or just about the entire minority GOP contingent in the House). Democratic objections in another letter number just 74, or about 23% of the party if you add in the independents (though it’s probably fractionally higher since Joe Lieberman is basically a moderate Republican these days and undoubtedly opposes these actions.)
I see no support from anyone for CNET’s 282 figure.
So we’ve got overwhelming majority opposition from the minority political party that is widely known for opposing all regulation merely on principal, and very tepid opposition from a tiny sliver of the majority party which also controls the Senate, House, White House, and FCC. And that support from the majority party is made up almost entirely of a faction that is strongly beholden to corporate interests.
Virtually every politician who has signed these letters has a record of favoring corporate interests over those of the public and get most of their campaign funds from Big Business. That is persuasive evidence of the corporate corruption of Congress, but little else.
That these two letters exist isn’t surprising or a meaningful signal for the FCC to slow down or reverse course. It was an event that was widely expected and one that repeats itself countless times amongst the various executive branch agencies that are tasked – by Congress – to regulate various the very same industries which now control a large portion of Congress itself. Industries that spend billions per year depositing money directly in the campaign accounts of the people behind letters like this with the sole intent of stopping regulation.
That’s how the system works and I don’t actually object to large corporations being able to spend their money and use their influence as they see fit. But you can’t ever make me care. I see this stunt for what it is, and I’m disappointed that you don’t.
But you’re right, it doesn’t matter how you and the other writers on this site try to spin it. In the end, Congress doesn’t create law by sending sternly worded letters written by corporate lobbyists to executive branch agencies, and no where in the Constitution does it say that 245 people constitute a majority.
These letters are a PR stunt that you uncritically used to support your position after the fact.
Congressmen “telling” the FCC to stop what it’s doing outside of the legislative process at the behest of their biggest corporate contributors – probably because they know they don’t have the votes to actually do anything about it the right way — is every bit as inappropriate and corrupt as the FCC trying to invent new regulatory power for itself that Congress hasn’t provided for.
You can’t support and be happy about the former while also condemning the latter.
And if you think I’m wrong, feel free to explain how.
A minor correction: When I said “74 is just short of the number of Blue Dogs in the House”, what I meant was that 74 the number of Blue Dogs is just short of 74. My original intent was to point out that the overwhelming bulk of those 74 Democrats are likely Blue Dogs — a faction of the Democratic party in the House that is known mostly for being corporate lap dogs (though that is not where their name came from.)
They were often called Bush Dogs during the Bush administration, if that tells you anything about who they are and why they are doing what they are doing.
Paul, you’re entitled to say what you feel here just like anyone else. As a free citizen, it’s your right to disagree with those congress members who oppose reclassification and even criticize them. The FCC has no such luxury.
George,
The FCC does not serve at the pleasure of Congress, it serves at the pleasure of the President who was democratically elected by the people. It is an executive branch agency, legislative. There is no “Congressional tether”. The FCC’s chairman and two Democratic commissioners were approved by the Senate knowing full well that they were going to pursue this agenda of regulation, the agenda of the President that nominated them to carry out his political will.
The FCC has all the luxury in the world to act as they see fit under the law until either a court tells them otherwise, or Congress does through the appropriate legislative process.
It’s clear that the politicians who oppose this agenda — who do not constitute even a majority of Congress outside of made up numbers — do not have the votes to do that. Under our system of government and law, the FCC is entitled and could even be said to be required to carry out its mandate as it understands it regardless of what a meaningless letter says.
I honestly don’t see what any of that has to do with opinion.
Paul, the court disagrees with you. In fact, the term “congressional tether” and “shattering” were specifically used by the DC Circuit court of appeals in their ruling against the FCC in the Comcast case.
You’re entitled to your opinion, but it’s the court that carries all the weight and the court restricts the FCC to its authority given by congress. It’s silly to suggest that the initial approval of an FCC commissioner or chairman is the only time congress has oversight over the FCC.
[...] a business that increases its investment when the regulatory environment (e.g., net neutrality or dubious reclassification proposals) precludes them from getting a return on that [...]
[...] [...]
Leave your response!
Twitter Feed
About Us
Digital Society is a digital think tank that believes culture and commerce are inseparable, that the digital economy flourishes when people are free and rights are secure, and that free markets free people.
Digital Society is an independent 501(c)3 non-profit organization, funded by donations from Jon Henke and from Arts+Labs. We advocate for a pro-culture, pro-commerce digital society through research, analysis and debate on emerging technology issues.
Reply Comments
Transparency and interactivity are trademarks of the Internet era, and we aim to foster them here at Digital Society. It is inevitable that some people will disagree with the technology policy positions we take. We want to have that constructive debate.
The Reply Comments feature gives our critics a chance to respond to our viewpoints and the Digital Society audience convenient access to competing arguments. Any time we directly challenge the views of an individual or a group on this site, the party in question may substantively respond in a guest post.
Please contact executive director Jon Henke by e-mail.
Subscribe
Daily Digest Email
Recent Posts
Recent Posts
Most Commented
Most Viewed