A narrative has emerged from some FCC commissioners asserting that their desire to regulate broadband as a public utility is not a power grab. Instead, it is simply the FCC reestablishing the authority it always had.
Let’s take a closer look.
Years ago the FCC drafted guidelines for network service providers to follow when managing their own networks. These guidelines were exactly that—guidelines. They never became rules and certainly never were made law by Congress. And given the absence of action over the years, apparently from the FCC’s point of view, these guidelines were largely followed. But then, Comcast, in the course of managing its own network, made some engineering decisions to optimize the Internet experience for everyone—not just the bandwidth hogs who were eroding the experience for everyone else.
The FCC didn’t like Comcast’s actions and decided to bring a lawsuit in an effort to enforce the agency’s guidelines. But in April a federal appeals court ruled that the FCC did not have the authority to regulate the network management practices of Internet service providers. The logical, if not overt, point of the court is that the FCC never had the authority to regulate service providers with even real rules, much less guidelines.
So for FCC commissioners to spin a tale that they are simply “reestablishing” and “reasserting” authority they thought the FCC had is to pull a fast one and hope the public won’t catch on. What these commissioners are doing is asserting that they had regulatory authority even after being told by the courts that they do not, and never did, have such authority.
So the assertion of any previous authority is pure fantasy—the FCC cannot reestablish that which never existed.
So let’s recognize the FCC’s action for what it is: Trying to bootstrap an expansion of executive government authority into areas never contemplated by the legislature, and after just having had a sizeable number of legislators tell the commissioners to stay out. The FCC needs to start doing a better job of distinguishing between its fantasies and legislative reality.