Privacy Hearing Reveals FCC’s Lack of Confidence in Its Net Neutrality “Authority”

by Mike Wendy on July 27, 2011

An interesting exchange happened between FCC Chairman Julius Genachowski and Representative Anna Eshoo at a recent House hearing on privacy a couple weeks back.

As quoted in this story, that exchange went like this:

Asked by Rep. Anna Eshoo (D-Calif.) whether the FCC has authority under current law to ensure customer info is not being sold to third parties or used for their own marketing efforts, FCC Chairman Julius Genachowski said that was an area of the Communications Act where clarification “would be helpful,” adding that “there is uncertainty and unpredictability about that now.” When asked whether he needed legislative clarification, Genachowski first said yes, then backtracked and said it would be “helpful.” The chairman was not looking to suggest that the FCC did not have the authority. Instead, he said, clarification would clear up any uncertainty.

Why is this remarkable?

First, on certainty.  Or, rather, the lack thereof.  In adopting the FCC’s Net Neutrality regulations, the Chairman noted last December that:

Today, we are adopting a set of high-level rules of the road… that will increase certainty for businesses, investors, and entrepreneurs. (Emphasis added)

One might think after listening to the Chairman then that with the agency’s new Internet rules, the certainty of regulating the Internet was, er, certain.  That regulating information services, which underpin online privacy matters, could be accomplished by the agency much as it does via its legislatively-defined powers over telephone, cable and satellite services.

Yet, at the privacy hearing, we hear of a new uncertainty, one that needs some “clarification” from Congress in the Communications Act.

Not knowing what the Chairman wants specifically – especially when so much of his privacy script comes from the National Broadband Plan, which was developed before the certainty of our amazing unregulated Internet growth became somehow uncertain through the Comcast decision, then became somehow certain again through the Net Neutrality Order, then finally became uncertain yet again by virtue of unyielding congressional concerns over online privacy (I’m out of breath here) – let me make the following surmise.

I think the FCC realizes that its own Net Neutrality regime is built on a house of sand.  Unlike other legislatively granted types of authority to regulate core services (like telephone, etc.), the FCC has grabbed hold of the Internet – ostensibly to promote non-discrimination by network providers – where a clear congressional tether for that authority is absent.

With this in mind, they know that going the extra mile of seeking to regulate online privacy matters – which goes well beyond simply regulating network providers, but also involves touching the edge of the Internet, to services like Google Search – represents, well, a bridge too far.

You see, if the Chairman thought he had sufficient power, then he wouldn’t need any clarification.  The agency’s self-grant of authority, which eviscerates congressional intent that should have walled off Internet / information services from regulation, allows the FCC (if it were legitimate) to regulate virtually all Internet services (as noted in the House hearing memo for the event seen here).

But, I don’t think the agency believes in that “power.”  Right now it has got some “bastard” authority that almost no one likes, and many see as outright illegitimate.  The Chairman’s statement to Eshoo is a classic admission against interest, revealing just how deficient the agency believes its Internet regulatory authority is.

As to the “clarification,” I believe the one the Chairman was fishing for would look like this (albeit over-simplified statement):

Congress grants the FCC the power to regulate Internet / information services as a Title II (or similar) regulated service.

From there, the agency would possess more latitude to issue far-reaching rules, or ask for more specific authority.  Absent at least the congressional grant, however, regulating online privacy via Net Neutrality seems a bald affront to congressional authority.

The second remarkable aspect here is that I have seen no critical reporting from mainstream techpol writers on this.  I guess I shouldn’t be shocked – because it seems to me that many reporters take it for granted that the FCC has this expansive power in the first place.  But, still, I would have thought that those who are worth their salt and cover this issue daily would want to at least find out why the Chairman thinks he needs a “clarification,” and what specifically that “clarification” might look like.

Oh, well (the MSM fails yet again, I guess).

And third – I’ll call it the “cricket confirmation factor.”  For all the public interest groups that pushed for Net Neutrality regulations, I cannot identify a single one that has jumped in to defend or even comment on the Chairman’s request for “clarification.”

There’s a good reason why.

They’re not lending a hand because doing so would not only bring attention to this “settled” matter of authority, but it would also confirm what we in the market-based sphere have long groused about: At first the regulations were not about regulating the Internet at all. Then they were about only regulating certain Internet players, like network providers.  Now they’re about making sure Internet services are safe and secure for privacy…

…Etc., etc., etc. (this is the most unsettling part).

The “cricket confirmation” tells me that our concerns about the slippery slope of regulation are real, not conjectural.  That Net Neutrality was always designed as the gateway to more regulation.  And, if after appeal it is upheld, there is little that would stop the FCC from regulating the Internet expansively and unabated, purportedly “in the public interest,” however that gets determined via any present or future Commission.

Remarkable, eh?

There oughta be a law.

 

 

{ 1 comment… read it below or add one }

txpatriot July 27, 2011 at 3:12 pm

“Nose of the camel”, “a little bit pregnant”, etc. ad nauseam . . .

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