On June 14 the D.C. Circuit Court unfortunately upheld the Federal Communications Commission’s (FCC) decision to assert broad regulatory powers over the Internet. This is a decision that future consumers and objective observers will no doubt regard as a terrible mistake.
Or maybe in the not-so-distant future: Economist Hal Singer reports that investment by ISPs has already slowed significantly since the FCC’s decision to regulate the Internet. That really matters, since according to recent data the two biggest investors in the U.S. economy were AT&T and Verizon.
The last time Congress spoke to this issue, the Telecommunications Act of 1996, its intention was to deregulate the communications industry. The conference report describes the bill thus: “to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced information technologies and services to all Americans by opening all telecommunications markets to competition.”
The ‘96 Act was far from perfect, but can anyone doubt that deregulation worked? The strategy certainly facilitated the “accelerated deployment of advanced information technology services”—the world of communications has been radically transformed over that period, with all of the resulting benefit to consumers from increased economic investment and new products and services. And where are the harms?
But the current Wheeler FCC, in its new determination to regulate the Internet, ignored the intent of Congress, completely reversed the precedents of recent commissions, and reached waaay over the ’96 Act—all the way back to the FDR-era Communications Act of 1934 —to find the tool it needed: Title II.
The FCC’s regulation of the Internet must be viewed as being in direct contravention of Congress’ deregulatory intent, and as the biggest U.S. re-regulation in decades. And it was only possible because a pro-regulation FCC chairman bowed to pressure from a pro-regulation President Obama and pro-regulation progressive special interest groups. And Congress, faced with a president willing to ignore Congress and impose his will from the executive branch, mustered no opposition.
The various parties can and should challenge the D.C. Circuit’s decision, but they can have little assurance of success given the judiciary’s general deference to administrative law.
In our system, laws are made by Congress—not by the executive branch. Our system does not anticipate a Congress that sits idly by while allowing its prerogative to be seized by an aggressive executive. Congress should act.