FCC to back-door Net Neutrality?

Stop me if you’ve heard this before.  The White House wants to pursue an unpopular policy, but Congress won’t act.  Instead, it gets its regulatory agencies to pass new rules that effectively bypass Congressional skepticism. We have heard this before, with the EPA endangerment finding on carbon dioxide — and now the FCC has decided to use that same game plan for Net Neutrality:

In a move that will stoke a battle over the future of the Internet, the federal government plans to propose regulating broadband lines under decades-old rules designed for traditional phone networks.

The decision, by Federal Communications Commission Chairman Julius Genachowski, is likely to trigger a vigorous lobbying battle, arraying big phone and cable companies and their allies on Capitol Hill against Silicon Valley giants and consumer advocates.

Breaking a deadlock within his agency, Mr. Genachowski is expected Thursday to outline his plan for regulating broadband lines. He wants to adopt “net neutrality” rules that require Internet providers like Comcast Corp. and AT&T Inc. to treat all traffic equally, and not to slow or block access to websites.

An appeals court threw cold water on this approach a month ago today, telling Genachowski that the FCC lacked the authority to impose these kinds of rules.  The Wall Street Journal reports that Genachowski will tailor his new strategy to live within the parameters of that ruling.  However, the network providers that have to live with the FCC as network manager may not see the nuance involved in imposing Net Neutrality rules in the face of that decision.

Some Democrats seem willing to indulge the nuance, though, even though Genachowski effectively proposes to bypass Congress:

Some senior Democratic lawmakers provided Mr. Genachowski with political cover for his decision Wednesday, suggesting they wouldn’t be opposed to the FCC taking the re-regulation route towards net neutrality protections.

“The Commission should consider all viable options,” wrote Sen. Jay Rockefeller (D, W.V.), chairman of the Senate Commerce Committee, and Rep. Henry Waxman (D, Calif.), chairman of the House Energy and Commerce Committee, in a letter.

Regardless of the merits of Net Neutrality (and there are good arguments on both sides of the debate), imposing Net Neutrality by edict is a dangerous precedent.  Unlike broadcast transmissions, which arguably play in the public space, Internet access involves private property (networks) that arguably exist in competition, especially in the wireless world.  The government should default to protecting the private-property rights of the network owners, and if those rights need to be circumscribed, then it should be left to Congress and the accountable elected representatives to decide how and where to do it.

This looks a lot like a power grab by an administration frustrated that even a Congress dominated by its own party won’t sign off on the radical policies of the White House.

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