20 December 2010

Even if you support net neutrality, you should oppose what's happening tomorrow

The FCC is scheduled to vote Tuesday on Chairman Julius Genachowski's "net neutrality" proposal.  First problem? The proposal is confidential. The public hasn't even seen it, or had a chance to comment on it. Do you support it? How could you, without even knowing the details of what's in it.

Second problem?  The FCC has no legal authority to regulate the Internet.  When the FCC tried to fine Comcast for throttling bittorrent traffic, the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC has no powers to regulate any Internet provider’s network, or the management of its practices: “[the FCC] ’has failed to tie its assertion’ of regulatory authority to an actual law enacted by Congress."

Compare these questions: "Do you support net neutrality?" or "Do you support the FCC regulating the Internet?" or even worse, "Do you support the FCC regulating the Internet without Congressional authorization?" I think you'd find very different answers to the last two questions.  Net neutrality as the FCC would have it tomorrow, is government-regulated neutrality without express Congressional authority.  It is an over-reach of executive authority through the back door, and bad public policy.  It is, as the Court of Appeals said, "untrammeled freedom to regulate activities over which the statute fails to confer..."

If you truly support net neutrality, you should oppose this executive agency power grab, and rather, support legislation in Congress that actually gives the FCC authority to regulate the Internet.
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