On Internet Regulation, The FCC Goes Back To The Future

[Commentary] Exactly two years ago, I predicted in a lengthy post that eight major Internet policy initiative undertaken by the Federal Communications Commission under then-Chairman Tom Wheeler would fall victim, sooner rather than later, to legal and political challenges. As of last week, all of them have now been sent down the memory hole, including the agency’s radical 2015 decision to “reclassify” broadband Internet as a public utility, subject to a small mountain of rules developed in the 1930’s for the former Bell monopoly.

It didn’t take much in the way of fortune-telling skills to get this right.  The Commission’s lawyers knew from the beginning that many if not all of Wheeler's efforts to extend the agency's regulatory authority over the broadband ecosystem had little if any basis in law.  In the end, two of the eight were quickly overturned by courts.  One was explicitly nullified by Congress.  Three failed when then-Chairman Wheeler was unable to secure the support even of fellow Democratic Commissioners. Under the US Constitution, even good intentions can’t substitute for clear legal authority.

[Larry Downes is the Project Director at Georgetown Center for Business and Public Policy.]