FCC Exceptionalism and Supremacy?

Often stepping back to gain perspective and to try and see the forest for the trees, can be highly instructive. However, if one steps back to see the big picture of how this FCC is attempting unilaterally to change U.S. Internet policy, the view is surreal.

  • Increasingly, this FCC is becoming an island.
    • It is insisting on self-asserting its exceptionalism and its supremacy over the Internet; and
    • It is ignoring an overwhelming amount of important and contrary input, advice and evidence from Congress, the Courts, DOJ, FTC, past FCCs, industry, and the public. 
  • Simply, this FCC increasingly appears to view itself as exceptional and as the supreme authority on and over the Internet, unconstrained by Congress, the courts, law, economics, markets, or the public.
Consider the avalanche of input and evidence that the FCC is completely ignoring as it proceeded yesterday with its announced plans to have a preliminary vote June 17th to enable the FCC to officially declare broadband a common carrier regulated service for the first time and to mandate its currently illegal proposed open Internet regulations.

1.  Ignoring Congress: A majority of members of Congress now oppose the FCC plan in writing (285 of 535) per the National Journal

  • Specifically, this FCC is ignoring the strong majority of House members (245 of 435) who oppose its Internet policy in writing; see letter from 74 House Democrats and a letter from 171 House Republicans).
  • This FCC also is ignoring the "grave concerns" expressed in a letter from John Dingell, Commerce Committee Chairman Emeritus, the most experienced telecom legislator in the House, who states that the FCC likely will lose in court and that Congress, not the FCC, should make Internet policy. 
    • Many House members oppose FCC efforts to end run Congress by essentially implementing legislation that was introduced in the House, but never even considered by House subcommittee -- the Markey Eshoo bill (HR3458).
  • In the Senate, at least the magic number 41, and maybe a majority, oppose the FCC on this too, given the opposition letter from 37 republicans and the fact that over a quarter of House Democrats oppose the FCC on this.

2.  Ignoring Courts/Law: It is instructive that the FCC's is not appealing to the Supreme Court the D.C. Circuit Court of Appeals Comcast decision that ruled that the FCC does not have the legal authority to regulate the Internet. This implies the FCC does not disagree with the court's legal judgment. 

  • In its own words, the FCC's "third way" is a creative way to invent legal authority that doesn't currently exist and that, in effect, circumvents the normal processes of legal appeal or seeking authority from the Congress.
  • At core, if the FCC believes it can invent fundamental legal authority all by itself, for itself, that is in direct contradiction to existing law, the FCC effectively is claiming effectively to have exceptional, supreme, and supra-constitutional powers without limit or constraint.    
    • Top appelate experts from both previous Democratic Administrations do not believe the FCC can invent its own legal authority: see former Clinton Administration Solicitor General Seth P. Waxman's legal analysis here; and Former Carter Administration, Assistant to the Solicitor General, H. Bartow Farr's III, First Amendment analysis here. 
    • The previous Democratic FCC Chairman Bill Kennard, who also served as FCC General Counsel, described in detail why applying Title II to broadband was wrong-headed and unworkable.  
    • Longtime FCC expert and former FCC Associate Bureau Chief Barbara Esbin explains in great detail why the FCC can't invent legal authority this way; see her legal analysis here.
    • The entire broadband sector is unanimous in its detailed legal analysis, based on its collective experience and expertise, that the FCC cannot invent new authority that does not exist in law; see their copiously documented FCC filings here and here.  

3.  Ignoring Bipartisanship: This FCC is ignoring the fact that all the major decisions that the FCC wants to essentially reverse unilaterally were originally near unanimous bi-partisan congressional votes, i.e. the 1996 Telecom Act and the repeated extensions of the Internet Tax Moratorium, and unanimous (5-0) FCC broadband information services decisions: cable modems (2002); DSL (2005), BPL (2006) and wireless broadband (2007). 

  • House Democrat Gene Green said the letter from 74 House Democrats "clearly shows it is not a partisan issue. A large number of Democrats have reservations about such a significant regulatory shift and the impacts it will have on jobs and investments." 
  • Moreover, the two Republican FCC Commissioners, Robert McDowell and Meridith Atwell Baker oppose the FCC's "third way" as contrary to law, existing successful FCC policy/precedent, and destructive to investment and jobs.

4.  Ignoring the DOJ: This FCC has also ignored the finding of the Federal Government's expert agency in assessing competition, the DOJ Antitrust Division, which rejected the FCC's market failure thesis, making it very difficult for the FCC to argue persuasively in court that the competitive facts have changed sufficiently to warrant a wholesale reversal of U.S. Internet policy. 

5.  Ignoring the FTC: There has been amazingly little public discussion that the FCC's proposed "third way" would be a big power/authority grab from the FTC.

  • Section 5 of the FTC's legal authority includes a common carrier exemption, meaning if the FCC declares broadband to be a common carrier for the first time, the FCC would effectively seize oversight authority over broadband providers from the FTC.
    • This implies a serious rebuke of the FTC's competence from the FCC. 
  • Most importantly, under the Constitution and law, Congress decides which congressionally-created entities have what legal authority over whom -- not the FCC. 

6.  Ignoring Economic Impacts: The FCC is ignoring overwhelming evidence and analysis that the FCC declaring broadband to be regulated for the first time -- after years of business model evolution, innovation, and hundreds of billions of dollars in infrastructure investment -- would be exceptionally disruptive and destructive to the sector and to the U.S. economy at large.

7.  Ignoring the Public: An overwhelming number of newspaper editorials around the country have opposed the FCC on this, e.g. The Washington Post, Chicago Tribune, Denver Post, Detroit News, Arizona Republic, etc.

  • Moreover, a national poll by Rasmussen found that 53% of Americans do not want the FCC to regulate the Internet, 27% do, and 19% are undecided.  

In sum, the evidence above is overwhelming that this FCC may think it knows best, but Congress, the courts, the DOJ, the FTC, the market and the public think it does not.  

  • The evidence shows this FCC is exceptional only in its delusion that it should, or does, have supreme unconstrained authority over the Internet.