FCC Net Neutrality Decision Faces Tenuous Existence

By Wayne Rash  |  Posted 2010-12-22 Print this article Print

title=Lawsuits Likely to Follow FCC Vote} 

"Today, the Commission is choosing to ignore the recent past as it attempts the same act. In so doing, the FCC is not only defying a court, but it is circumventing the will of a large, bipartisan majority of Congress as well," McDowell said. "More than 300 members have warned the agency against exceeding its legal authority. The FCC is not Congress. We cannot make laws. Legislating is the sole domain of the directly elected representatives of the American people. Yet the majority is determined to ignore the growing chorus of voices emanating from Capitol Hill in what appears to some as an obsessive quest to regulate at all costs." 

McDowell also accused the Commission staff with playing fast and loose with the public comment period requirements. He said that on Dec. 10, two days before the end of the comment period, the Commission dumped 2,000 pages of documents into the public comment file and 1,000 more the next day. He also noted that the final wording of the rule was just released to other commissioners a few minutes before midnight the previous day. He noted that his staff is still wading through it, even though the vote has come and gone. 

But McDowell sees a more clear danger. "Using these new rules as a weapon, politically favored companies will be able to pressure three political appointees [the majority of the FCC's five commissioners] to gain competitive advantage." McDowell said he sees a future of litigation and an ultimately rejection of the FCC's net neutrality rule. 

Commissioner Meredith Attwell Baker said that all of the Commission's efforts are simply going to end up where there were after the court decided against Comcast. "The majority regulates an entire sector of the Internet without any legitimate legal authority to do so," Baker said. "The DC Circuit only months ago rejected our attempt to enforce net neutrality principles.

"The Commission will return to court with the same basic infirmities: no explicit statutory authority to support its action and a legal theory that would give the Commission an unbounded right to adopt any policies it desires to promote its particular vision of the Internet." 

While the rules should go into effect during the holidays, the chances of them having any substantive effect on anyone are slim. There's already a line forming to sue the FCC, and as time goes on you can expect the litigation to get more and more intense. Whether these rules emerge intact is an open question, but given the findings of the court and the statements from members of Congress, it's unlikely.

As we move into January and a Republican majority is seated in the House of Representatives, those chances diminish to virtually zero. This will, of course, inundate the FCC with legal bills. In a way, this net neutrality might best be seen as a Communications Lawyer Full Employment Act. In that way, at least, it should excel. 

Wayne Rash Wayne Rash is a Senior Analyst for eWEEK Labs and runs the magazineÔÇÖs Washington Bureau. Prior to joining eWEEK as a Senior Writer on wireless technology, he was a Senior Contributing Editor and previously a Senior Analyst in the InfoWorld Test Center. He was also a reviewer for Federal Computer Week and Information Security Magazine. Previously, he ran the reviews and events departments at CMP's InternetWeek.

He is a retired naval officer, a former principal at American Management Systems and a long-time columnist for Byte Magazine. He is a regular contributor to Plane & Pilot Magazine and The Washington Post.

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