The Obama administration just refuses to take no as an answer to its desire to control the Internet.
Just a month ago, the Federal Appeals Court for the District of Columbia unanimously ruled that the FCC didn't have the power to regulate traffic on the Internet. It seemed pretty clear, but last Thursday FCC Chairman Julius Genachowski announced a new plan: redefine broadband services to be something it can regulate, in this case telephone services.
This is like a kid being told that he has to eat his "green beans" and then claiming that the "cookies" are really "green beans." The Obama administration has very sticky fingers and doesn't seem embarrassed by this power grab. The notion that the government can redefine things to extend its power is pretty scary.
This distinction between telecommunications and broadband is quite clear. Congress made the distinction clear in the 1996 Communications Act.
Nothing in that act gives the FCC authority to decide on its own what is and what is not a telecommunications service. Indeed, the broadband Internet is defined in the act as an unregulated "information service."
Since Congress acted, the FCC under both Democratic and Republican leadership have strongly argued that broadband Internet and telecommunication services are not the same thing and were never meant to be the same.
The Obama administration wants Americans to trust their bureaucrats with this massive new power. But in their ideal world, federal agencies, not Congress, decide what the federal agencies can regulate.
Forget the basics of our Constitution, where there is a balance of power between the three branches of government.
All they need is a "good reason" for these new regulations. Right now their immediate goal is to regulate what prices can be charged for Internet services, so-called "Net neutrality," something which will harm consumers in order to help favored companies such as Google.
But it doesn't take much imagination to see where these regulations can lead. Take the power of the FCC to levy fines for obscene language. Might the FCC want to reclassify cable programming so that it can impose the same fines on HBO and Showtime that it now imposes on over-the-air broadcasts?
Surely, if the federal government can provide a "good reason" to reclassify broadband services as telecommunications, if can come up with a "good reason" to prevent such bad language.
Take the "fairness" doctrine, a rule created during the 1940s requiring that broadcast stations give equal time to both sides of controversial issues.
In 1987, Ronald Reagan got rid of this regulation. To silence right-wing criticism, the Obama administration is already trying to reimpose a version of the fairness doctrine on broadcast stations.
We can imagine how the Obama administration or some future administration might want to use these same powers to regulate — read silence — the information on the Web by extending a fairness doctrine to the Internet.
Neither President Obama nor his political appointees can unilaterally rewrite laws no matter how "good" of a reason that they think they have.
If this change were allowed, it will be a truly major increase in executive branch power. The only thing more worrisome is that President Obama's judicial appointments might let them get away with this.
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