The Federal Communications Commission todsay voted to regulate the Internet for the first time, in what proponents have dubbed a "Net Neutrality" scheme. The new regulations forbid internet service providers from impeding access to legal web content. See the video below the fold for a good summary of what that means for Internet users.
Neither side of the debate over the regulation of ISPs is particularly fond of today's ruling. Regulation advocates were mostly hoping that the FCC would classify the Internet and regulate it as a government-granted monopoly, in much the same way that telephone service has been regulated since the 1930s. Opponents of the new regulations claim the policy is a solution in search of a problem, and that the they will stultify Web innovation.
Fortunately for both sides, then, forces are already at work to scale back the regulations.
The first potential avenue for reversing the regulations is judicial. In April, a federal appeals court in Washington D.C. ruled that the Telecommunications Act of 1996 did not authorize the FCC to regulate Internet use, and therefore that the FCC had no statutory authority to do so.
While the FCC at the time acknowledge that the Internet did not fall under either the "telecommunications service" or "cable service" categories that would permit federal regulations under the Telecommunications Act. But the Commission claimed the law established its regulatory authority by authorizing the FCC to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions."
The judge disagreed, ruling that that "ancillary" power granted to the FCC had to supplement regulatory efforts authorized by sections of the law specifically citing types of communications under the FCC's jurisdiction (telecommunications, broadcast, cable, etc.).
Considering Congress has not passed a law dealing with the FCC's regulatory power in the realm of telecommunications - meaning this judge's ruling still stands - there will almost surely be a court challenge to the new ISP regulations.
But Congress may not wait for a court challenge, and may opt to take more direct action to stunt the FCC's regulatory effort. Key Republicans have already announced their intentions to do so.
Sen. Jim DeMint, always a stalwart of any effort at eliminating regulatory burdens, blasted the FCC's decision in a release today, and lauded legislation he has already introduced intended to block the new reuglations:
Proceeding on its own liberal whims rather than facts, this FCC has chosen to grant itself broad authority to limit how businesses can bring the internet to consumers in faster and more innovative ways…
To keep the internet economy thriving, this decision must be reversed. Regulatory reform will be a top priority for Republicans in the next Congress, and I intend to prevent the FCC or any government agency from unilaterally burdening our recovering economy with baseless regulation.
In order to provide the stability businesses need to grow, I will work with my fellow senators to see passage of my FCC Act, which would ensure that the FCC can only use its rulemaking powers where there is clear evidence of a harmful market failure, as well as the REINS Act, which would add the accountability of a Congressional vote before any government agency’s proposed major regulations may be finalized.
Other Republicans with key committee placements also expressed a desire to scale back the new regulations. Sens. Jon Ensign, R-Nev., and Kay Bailey Hutchinson, R-Tex., announced that they would be introducing a resolution of disapproval, which would prevent the ISP regulations from going into effect. Hutchinson is the Ranking Member on the Energy and Commerce Committee, while Ensign is the top Republican on that panel's subcommittee with jurisdiction over communications and Web issues. Ensign had this to say:
As the rest of the world forges ahead, the United States will face a technological 'Lost Decade' as these new FCC rules restrict access to the Internet and stall this type of innovation in our country. I had hoped that the FCC would act in the best interest of the United States, but I was, unfortunately, wrong.
On the House side, Rep.Cliff Stearns, R-Fla., who come January will chair the House Energy and Commerce committee's sub-panel with FCC jurisdiction, also announced his intention to introduce a resolution of disapproval. Stearns said the following in a release:
Since its inception, the Internet has thrived and grown without any federal regulation,” stated Rep. Cliff Stearns (R-FL), Ranking Republican on the House Communications, Technology and the Internet Subcommittee. “Without any hint of market failure, the reason for any regulation is non existent. Furthermore, the Courts have determined that the Federal Communications Commission (FCC) has no jurisdiction over the Internet.
President Obama defended the decision in a statement today, saying the FCC's ruling "will help preserve the free and open nature of the Internet while encouraging innovation, protecting consumer choice, and defending free speech."
But while the regulations are safe from any executive pressure, the other two branches may pose distinct threats to ISP regulation in its current form. Proponents of the regulations are not out of the woods yet.