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Saturday, February 28, 2015

A bigger issue than net neutrality

Posted by Scott Tibbs at 4:00 AM (#)

There is a bigger issue in the FCC vote on Thursday than net neutrality.

Since this is basically a new law, it should have been passed by Congress, not an administrative agency.

Once again, this shows how lawless our government has become, with the bureaucracy usurping powers that rightly belong to the legislative branch.

And that lawlessness is bipartisan.

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At March 1, 2015 at 12:20 PM , Blogger TableTopJoe said...  

Mr. Tibbs,

As you can tell, I am a regular reader of yours and often enjoy your opinions, even as I frequently disagree with them.

In this instance, I understand where you are coming from, but you must distinguish between a law and a rule. A law is passed by congress and signed by the president, as I am sure you are well aware. A rule, on the other hand, is a statement by an agency tasked with enforcement of a statute whereby the agency announces ahead of time how it plans to exercise statutorily conferred discretion.

While it may be that the policy of net neutrality is a bad one, I disagree that this is a new law. The FCC enacted this policy under discretion it claimed under the Federal Communications Act. Most assuredly, there was no Internet in the 1930s (thereabouts) when this act was originally passed. However, the Internet is a form of communication, and the Federal Communications Act created the FCC and empowered it to make rules.

Insofar as you disagree with those rules, you have options. You can vote for President Ted Cruz (or some other Republican) who will likely overturn this rule. You can lobby Congress to amend the Federal Communications Act, specifically providing that the Act does not apply to the Internet (or a more-narrowly defined topic if you please). You can, as a telecommunications consumer who is allegedly harmed by this sufficient to grant you standing, bring suit against this rule. Also, if you really want to tilt at a windmill, you can clone Justice Thomas 4 times over and revive the "non-delegation doctrine" (also, confusingly, referred to as the "delegation doctrine") which asserts that Congress, under the Constitution, cannot delegate any authority to the legislative branch.

I'm sure that more-creative minds than mine can concoct additional recourse for you if net neutrality (to be clear, "net neutrality" is the idea that internet providers are a common carrier, just like railroads and telephone companies, and must provide equal access to their "routes" to all comers, and may not cut backroom deals with favored customers) is that bothersome to you.

I am equally sure that this does NOT show "how lawless our government has become, with the bureaucracy usurping powers that rightly belong tot he legislative branch." Unless this lawlessness you speak of has been going on for approximately 100 years or so. In that case, to the ramparts!

At March 2, 2015 at 6:42 AM , Blogger Scott Tibbs said...  

Rule vs. law is a distinction without a difference.

The "rule" is enacted by government, enforced by government, and binding on a particular industry. If they break the "rule" they will face consequences the same as if it had been passed by Congress. In terms of how net neutrality will impact internet service providers, content providers and consumers, the effect is exactly the same.

The only difference is that it was passed by a federal agency instead of the elected legislature. And that is my problem with it. The people's representatives are being bypassed by the bureaucracy.

And it is not just "net neutrality" where I have a problem with administrative agencies making law. That has been done for generations, and it is just as wrong there as it is here.

I don't have a strong opinion on net neutrality. I disagree with it, but I don't see it leading to the dire consequences that some of the opponents have predicted. In 20 years time, the Internet will look pretty much the same with "net neutrality" as it would without it.