Last month, the U.S. Court of Appeals Court for the District of Columbia delivered a unanimous and unambiguous repudiation of the Federal Communications Commission’s attempt to dictate how a cable company should run its business as an Internet-service provider. FCC Chairman Julius Genachowski responded last week by proposing a “third way” around the court decision: He will redefine the Internet as if it were a telephone.
The FCC, a New Deal relic, derives its current authority from the Telecommunications Act of 1996. At the time the law was enacted, Congress wisely decided to take a hands-off approach to the Internet by creating a new “information service” category explicitly designed to remain free from the tangle of red tape that the agency layers on top of telephone service, cable, broadcast television and radio.
Mr. Genachowski, however, is upset that this plain reading of the statute deprives him of the authority to “safeguard privacy,” “empower consumers” and “lower the costs of investment.” He seeks to remedy this by imposing new rules on the Internet’s network infrastructure. In a rather Orwellian fashion, he claims these regulations would not involve regulating the Internet itself. Mr. Genachowski insists that he has no intention of meddling with online content.
Even if that’s true, his proposal remains deeply troubling. If a federal agency is allowed to ignore court rulings and erase laws with which it disagrees, there would be no restraint on what a future chairman might do. Surely, if the federal government can provide a “good reason” to reclassify broadband services as telecommunications, it can come up with a “good reason” to prevent such bad language on the Internet or even extend its reclassifications to cover cable television programs on HBO and Showtime.
Absent legal constraints, the agency could even resurrect the Fairness Doctrine and apply it to the Internet. This rule, created during the 1940s, required that broadcast stations give equal time to both sides of controversial issues, but it had the unintended consequence of discouraging stations from discussing anything controversial. The scheme was ultimately canceled by President Reagan’s FCC in 1987, a move that ushered in a revival of talk radio.
Neither President Obama nor his appointees have the authority to unilaterally rewrite the law when it suits their convenience. If Mr. Obama wants to impose controls on the Internet, he must go to Congress and ask for the new power – a request not likely to be granted. Members of Congress and the general public appreciate that the Internet’s greatness lies in its unregulated, Wild West nature. As the FCC opens its proposals to public comment, we hope that readers deliver the clear message that federal “help” is neither needed nor desired online.