McDowell: Stopgap Title I Item Should Be Non-Starter

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Federal Communications Commission commissioner Robert McDowell, in a speech to the Federalist Society, made it clear he thinks the agency can't find the authority under Title I because it isn't there.

"After repeated and exhaustive reviews of the statute and the record, I still can't find anything close to a congressional directive for the FCC to regulate information services as some have proposed over the years," he said.

McDowell addressed the reports that FCC chairman Julius Genachowski is preparing to vote on a version of expanded and codified network neutrality rules under existing commission authority based on a failed legislative compromise. That would have sunset, in essence providing a net neutrality stopgap. McDowell warned against what he called a "giant leap into a potentially dark and dangerous regulatory abyss."

"Those who may think that the commission will escape another appellate rebuke merely by labeling a new Title I order as 'interim,'" he told his audience, "should reevaluate their strategy. Although courts generally have been deferential to an agency when it issues an interim order, it helps an agency's case tremendously if it can point to some facts to justify such extraordinary action, such as an emergency - a real emergency. In the case of regulating Internet network management, where is the evidence of an emergency? Should administrative agencies be allowed to regulate far beyond the bounds authorized by Congress merely by labeling an order as 'interim'? If so, wouldn't agencies' legal powers essentially be unlimited? Wouldn't Congress become irrelevant in such a scenario?"

McDowell reiterated his idea of, rather than adopting new regs, having the FCC get together with the Federal Trade Commission, other antitrust and consumer affairs agencies and nongovernmental Internet groups to "spotlight" allegations of anticompetitive conduct and punish it.

Industry groups have long argued that there are relatively few examples of bad actors, something even some network neutrality proponents concede. But those opponents also argue that one of the reasons may be that the technology is getting so advanced that it may be happening undetected, and that to wait until it is detected to decide it needs to be proscribed will be too late to prevent the damage to an open Internet.

Genachowski has the three votes he needs to adopt network neutrality regs, with the two other Democrats on the record supporting them, though Commissioner Michael Copps, for one, has pushed for reclassification of Internet access under Title II common carrier regs, rather than a compromise or interim approach.