Gus Hurwitz, a visiting fellow at the American Enterprise Institute, thinks the Federal Communications Commission is going way overboard in the rules it is poised to adopt to guarantee Internet neutrality.
Those rules would treat Internet service like a public utility, forbidding companies and others from paying service provides to speed up the transmission of their content.
"These rules face a bleak future in court. This is because they clearly exceed the intended scope of the Commission's statutory authority," Hurwitz, a professor at University of Nebraska's law school,
writes on Real Clear Markets.
"While clever lawyers surely can argue that the words of the Communications Act have enough ambiguity to cover the Internet, the purpose and design of the Commission's rules clearly amount to a substantial expansion of the Commission's authority. The courts look at such overt expansions of authority with substantial skepticism."
Former Federal Communications Commission Chairman Michael Powell shares Hurwitz' antipathy toward the expected rules, and he lays the blame on President Obama's for putting pressure on the FCC to enact strict regulation for net neutrality.
The rules are a "sad example of unreasoned decision-making," Powell, who served under President George W. Bush and is now president of the National Cable and Telecommunications Association,
told CNBC.
"Watching the president of the United States direct the FCC to adopt a very specific regulatory result, I think . . . was shocking and put the commission in an untenable position." In November, Obama directed the FCC to establish the "strongest possible rules" to ensure net neutrality.
Powell hopes Congress will pick up the ball. "This issue is ripe for Congress to fix," he said.
"When Congress realizes the order goes far beyond protecting net neutrality . . . and in fact introduces a new regulatory regime for the Internet, there may be growing interest in trying to reach a conventional solution."
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