FCC quacks duck court showdown

MOTLEY: FCC quacks duck court showdown
Commission’s Internet rules were dismissed once already

June 21 marks the six-month anniversary of the Federal Communications Commission (FCC) illegally imposing itself on the World Wide Web in order to assert patently absurd “net neutrality” rules.

A half-year later, the FCC still has not filed the order with the Federal Register, which is where all new rules and regulations must go to begin their imposition.

What’s the holdup? There are several possibilities, some or all of which may be why the FCC is so thoroughly slow-playing it. (Please note that it took the FCC less than a month - April 7 to May 6 - to file its wireless data-roaming seizure - so it can get things done when it wants to.)

One possibility for the delay: Two wireless providers - Verizon and Metro PCS - had filed suit to undo FCC Chairman Julius Genachowski’s net neutrality order. Verizon had sought relief in the same U.S. Court of Appeals for the District of Columbia Circuit that unanimously ruled in April 2010 that the FCC has no net neutrality authority.

The court dismissed the suit, saying the company couldn’t contest the rules until the agency published them. But the court’s docket is moving along and the clock ticking. The longer the chairman drags his feet on the net neutrality order, the less likely it becomes that the court will be able to hear the case. By stalling, the chairman is callously venue-shopping - and ducking a court in which he knows he most likely will lose.

This demonstrates just how proud the FCC must be of the shabby lawyering - and linguistic and intellectual contortions - it has executed to try to re-concoct justification for its second unjustifiable and illegal Internet power grab.

If the FCC thought it had found a newer and better way to assert its alleged authority than the one summarily dismissed last year - authority that Mr. Genachowski admits he doesn’t have - the commission wouldn’t be attempting to duck the court that last time told it to take a flying leap.

The FCC’s newest official excuse for the delay is that it is going through the process of complying with the Paperwork Reduction Act (PRA). That pretext was proffered on Wednesday at the National Cable and Telecommunications Association’s Cable Show by FCC General Counsel Austin Schlick.

There’s at least one huge problem with this assertion: The FCC - and every federal department, agency and commission - is supposed to comply with the PRA before it votes to impose a new order, not after. To do so afterward defeats the point of the law.


The intent of the PRA is to minimize the paperwork burden for individuals; small businesses; educational and nonprofit institutions; federal contractors; and state, local and tribal governments; and to prevent the government from imposing new rules and regulations without the feds first executing a thorough assessment of just how much damage to the private sector the rules and regulations would do.

The act states: “With respect to the collection of information and the control of paperwork, each agency shall … assess the information collection burden of proposed legislation affecting the agency … for any proposed collection of information contained in a proposed rule (to be reviewed by the Director under section 3507(d)), provide notice and comment through the notice of proposed rule-making for the proposed rule. … (VISec. 3506. Federal agency responsibilities subsection 4B c2).

In one sentence, the word “proposed” - not “passed” - is used four times with respect to the rule being examined. That only makes sense. It doesn’t help to glean this information if you’ve already voted on the rule.

What if the government votes on an order and then comes to find that it dramatically damages the industry upon which the agency already has dropped the hammer?

Net neutrality is just such an order. A June 2010 New York Law School study found that reclassification of the Internet as a telecom service and subsequent imposition of net neutrality rules would cost the economy at least $62 billion annually over the next five years and eliminate 502,000 jobs. What the FCC ultimately thrust upon us was Internet reclassification and net neutrality in all but name, so these numbers most likely will prove painfully accurate. That’s fantastic news for the economy.

The FCC already has imposed its net neutrality power grab - will it now unimpose it?

Does the federal leviathan ever cede power it has obtained, especially when obtained - as with net neutrality - by hook or by crook?

Umm, no.

Seton Motley is president of Less Government and the editor-in-chief of StopNetRegulation.org, a publication of the Center for Individual Freedom.