Rules passed this year over Internet regulation will come to a head Dec. 4, when a federal appeals court will hear oral arguments over a Federal Communications Commissions rule that critics say steals consumer protection authority from the Federal Trade Commission.
Critics say rules passed this year have muddled the law and done little good, and now a number of lawmakers are joining the chorus.
A group of 23 House members led by Rep. Marsha Blackburn, R-Tenn., filed an amicus brief supporting plaintiffs in the case on Nov. 4, arguing that regulations passed by the FCC this year exceed that body’s authority. “Congress considered and rejected numerous bills that would have conferred power upon the FCC” to enact such rules, they write in their brief.
“That Congress spent nearly a decade struggling with whether and how to regulate the Internet does not provide a justification for the FCC to bypass that process,” the lawmakers say, and add that regulatory policy has become muddled as a result of the commission’s decision for a reason: It was never intended to have the authority to change industry regulations without authorization. “Congress certainly did not leave (and would never have left) this issue of great national importance to be decided by the FCC,” they say.
The FCC voted in February to reclassify Internet service providers as Title II utility companies, along the lines of telephone providers, under the antiquated Communications Act of 1934. Richard Bennett, a visiting fellow at the American Enterprise Institute, believes the regulations are not only onerous, but have also created a convoluted legal framework that usurps the power of the FTC to protect consumers.
“The FTC had power to enforce privacy regulations and truth-in-advertising regulations against Internet service providers, as well as edge service companies like Google and Netflix,” Bennett told the Washington Examiner. “With the FCC reclassifying Internet service under Title II, the FTC no longer has that power.
“It subjects Internet providers and edge service providers to two completely different sets of regulation under different agencies with different agendas,” he added.
Plaintiffs bringing suit include companies such as AT&T and CenturyLink, trade organizations such as the U.S. Telecom Association and the Wireless Association, and groups as diverse as the Chamber of Commerce, TechFreedom, the Georgetown Center for Business and Public Policy, and the International Center for Law and Economics.
In addition to the critique that the rules have made the law more confusing, plaintiffs are arguing that the rules have an adverse economic impact, unconstitutionally restrict the rights of ISPs, and mischaracterize the very nature of the business.
“The FCC’s order makes claims about the nature of the Internet that are simply factually wrong,” Bennett said. “They made some very serious technical errors in describing the functions that the Internet performs, and why the Internet in their minds is just like a telephone network.”
“Consumers would benefit from a return to a consistent deregulatory policy toward the entire Internet,” he says, “but there’s very little prospect of that coming out in the near term.”
While the court is expected to make a decision in the first few months of 2016, observers like Bennett expect the final outcome may take much longer to work out. “No matter how the case goes, I think it’s going to the Supreme Court,” he said.
