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Is The FCC Trying To Bypass Congress On Internet Regulation?

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The FCC officially released its plan for regulating the Internet on Wednesday, which opponents say is a politically motivated effort to circumvent Congress.

On Wednesday, FCC Chairman Tom Wheeler released his “Open Internet” proposal for achieving net neutrality by regulating wireless broadband networks under the same statute that applies to landline telephones. (RELATED: This is What a Republican FCC Commissioner Had to Say About Wheeler’s Net Neutrality Plan)

Net neutrality refers to the concept that internet service providers should not be allowed to either block legal content or prioritize certain types of content by charging fees for faster access speeds, and while those goals have broad support in principle, there has been considerable debate over how to accomplish them in practice.

Wheeler’s plan would assert FCC authority over broadband providers under Title II of the Communications Act and Section 706 of the Telecommunications Act, which he claims, “provides the broad legal certainty required for rules guaranteeing an open Internet.”

“An open Internet allows consumers to access the legal content and applications that they choose online, without interference from their broadband network provider,” Wheeler explained. “And it gives innovators predictable rules of the road to deliver new products and services online.”

The tech policy think tank Tech Freedom, however, contends that Wheeler is overstepping his authority in order to advance a partisan political agenda, and in the process is breaking promises he made to Congress during his confirmation hearing.

“We really see Wheeler as having flip-flopped,” Tech Freedom president Berin Szoka told reporters during a conference call Thursday morning. (RELATED: Net Neutrality Bait and Switch to Title II)

“During his confirmation, he specifically told Sen. Thune that the FCC would seek guidance” before moving forward with net neutrality rules, and “said interconnection would be a different matter for a different proceeding.”

With his current proposal, Szoka claims Wheeler has “moved the goal post … [and] set a dangerous precedent for future chairmen to move the goal post yet again.”

The group also objects that Wheeler has refused to suspend his efforts even though Congress is currently considering legislation that would accomplish the same objectives as those ostensibly sought by his plan. (RELATED: Testing the FCC’s Net Neutrality Political Calculus)

“For us, legislation really is the answer,” Szoka said, but “this makes it unlikely that Congress will take action until after litigation is concluded.”

“I’ve been engaged in this field for seven years, and I’d love to see this all resolved,” Szoka said. “Congress can do that now instead of leaving it to the courts to fight over.” (RELATED: GOP Net Neutrality Bill Could Preempt Internet Regulation)

“Nobody can file a legal challenge until the final rule is published in the Federal Register,” he noted. “A lawsuit would likely start, at the earliest, in May or June, and would likely take at least a year to be resolved.”

In a briefing call with reporters on Wednesday, a senior FCC official claimed that, “It is certain that the rule will withstand the inevitable legal challenges,” because it is “Title II tailored for the 21st century.”

“The order applies a few key provisions of Title II, but forbears from the others,” the official continued, saying the agency was careful to ensure that the proposal complies with court rulings striking down its previous efforts to assert regulatory authority over the Internet.

Szoka, on the other hand, said, “It’s not by any means clear that the FCC will actually succeed in defending its proposed change to the rules for broadband.”

“The FCC says they have killer legal arguments, but they didn’t tell us what they are,” he pointed out, adding that the reasoning they do provide “doesn’t seem to justify a ban on paid prioritization at all.”

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