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The FCC Is Unnecessarily Undermining its Legitimacy

In directing the Wireless bureau to make two substantial, Commission-level decisions today, without the full Commission vote that was requested by Commissioners Pai and O’Rielly, (concerning the release of the annual wireless competition report and regulating cellular data roaming rates), the FCC Chairman unnecessarily undermined the legitimacy of the FCC at a critical time the FCC needs all the actual and perceived legitimacy it can get.

The FCC’s legitimacy comes from the authority of law written by a duly-elected Congress under the U.S. Constitution, and from the official votes from duly-appointed FCC commissioners, who in turn abide by: the powers vested in the Commission by the Communications Act; due process; and the Administrative Procedures Act.

Process matters.

Making rate regulation without an official vote of the Commission can create the public perception that a majority of the Commission may not support some, or all of the new rate regulation.

At this particular time in the FCC’s history, when the FCC is potentially poised to reclassify the Internet as a Title II telecommunications service to impose rate regulation for downstream Internet traffic, (which also could involve some forbearance from other rate regulations via the official forbearance process), the perception of the reliability of the FCC in respecting its own processes and procedures is especially important.

FCC Title II Internet Regulation: “Believe it or not!”

With due credit toRipley's Believe it or Not!, so much odd and bizarre is happening in Washington in the "name" of “Title II utility regulation of the Internet ” that the topic calls for its own collection of: Believe it or Not!®oddities.

In seeking comment for what is the best FCC legal authority to enforce net neutrality, Section 706, Title II, etc., the FCC has completely ignored the most obvious solution – asking Congress -- the source of all its existing authority -- for the new authority the FCC believes it needs!

Top Ten Deficiencies in FCC’s Title II Record

Will this FCC legal team learn from the legal mistakes of their predecessors and ensure the FCC has a thorough and a sufficient legal record to justify their legal theories, given that the FCC already has failed twice in crafting legal net neutrality regulations in Comcast v. FCC in 2010 and again in Verizon v. FCC in 2014?

Kindly, the U.S. Court of Appeals has provided the FCC a roadmap to follow to legally justify their net neutrality rules under Section 706.

It is telling that the court provided no similar legal “roadmap” for Title II reclassification. That’s because Title II reclassification would require successfully backtracking decades of opposing FCC and court precedents and remixing FCC authorities in new and imaginative ways to traverse uncharted legal territory.

Who Pays for Net Neutrality? – My Daily Caller Op-ed

Please don’t miss my Daily Caller op-ed here: “Who Pays for Net Neutrality?

It’s the core question net neutrality proponents don’t want asked and won’t answer.

This is Part 75 of my FCC Open Internet Order Series.

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FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]

The Only Legitimate FCC Hybrid Net Neutrality Approach – My Daily Caller Op-ed

Please don’t miss my Daily Caller op-ed here: “The Only Legitimate FCC Hybrid Net Neutrality Approach

  • Importantly it spotlights from where the FCC’s legitimacy to regulate originates.

This is Part 74 of my FCC Open Internet Order Series.

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FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]

Top Ten Questions to Ask About Title II Utility Regulation of Internet

 

If Congress or the media seek incisive oversight/accountability questions to ask the FCC about the real world implications and unintended consequences of its Title II net neutrality plans, here are ten that fit the bill.

 

  1. Authority? If the FCC truly needs more legal authority to do what it believes necessary in the 21st century, why doesn’t the FCC start the FCC modernization process and ask Congress for the legitimacy of real modern legislative authorities? Or is it the official position of the FCC that its core 1934 and 1996 statutory authorities are sufficiently timeless, modern and flexible to sustain the legitimacy of FCC regulation for the remainder of the 21st century?

  2. Growth & Job Creation? While it may be good for the FCC’s own power in the short-term to impose its most antiquated authority and restrictive Title II regulations on the most modern part of the economy, how would that heavy-handed regulation be good or positive for net private investment, economic growth and job creation?  

Top Ten Adjectives to Describe FCC Title II Net Neutrality Regulation

 

The top ten most descriptive adjectives for the President’s claim that Title II utility regulation authority is needed to implement net neutrality are:

 

  1. UNTRUE

  2. UNWARRANTED

  3. UNNECESSARY

  4. UNFAIR  

  5. UNPOPULAR

NetCompetition on President's Call for FCC Title II Internet Regulation

 

FOR IMMEDIATE RELEASE                                           

November 10, 2014

Contact:  Scott Cleland 703-217-2407

 

The President’s Call for Regulating the Internet as a Title II Utility Could Break the Global Internet

Autocratic Nations Want the UN’s International Telecommunications Union to Control the Internet

Reclassifying the Internet as “Telecommunications” Isn’t Domestic Policy, but Trade/Foreign Policy    

 

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:

The Federal Communications Congress? – My Daily Caller Op-ed

 

Please don’t miss my Daily Caller op-ed here: “The Federal Communications Congress?”

It explains how the FCC would be reversing longstanding, successful, bipartisan U.S. trade and foreign policy, if it unilaterally reversed the legal status of Internet traffic from an un-tariffed information service to a price (and tariff) regulated “telecommunications” service.  

This is Part 71 of my FCC Open Internet Order Series.

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FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]

FCC Should Ask Congress for Authority to Address Internet Fast Lane Issue

 

If the FCC believes it needs additional legal authority to ensure no Internet “fast lanes” or “paid prioritization,” it should ask Congress for the authority to do it.

That’s what agency “creatures of Congress” do when their original legal authorities have obsolesced and need modernization to remain functional. It’s Congress’ constitutional role to set American communications/Internet policy; it’s the FCC’s role to implement and adjudicate it. That’s basically why the U.S. D.C. Court of Appeals overturned the FCC in 2010 in Comcast v. FCCand again in 2014 in Verizon v. FCC.

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Q&A One Pager Debunking Net Neutrality Myths