FCC on Path to Most Dangerous Expansion of Federal Power
Since Civil War
WASHINGTON D.C. — A growing chorus of experts agree that the FCC's broadband "Third Way" efforts stand on shaky legal ground. The most contentious of these proposals — the reclassification of broadband Internet access into a telephone-like service — has, for obvious reasons, drawn the lion's share of focus and headlines. But, as Larry Downes notes in his new paper, "The Seven Deadly Sins of Title II Reclassification (NOI Remix)," proposals hidden deep within the "Third Way" proposal create a ticking time bomb, one which should be approached cautiously, if at all.
Downes, the author of several best-selling books on innovation, writes: "Beyond the hubris of reclassification, there are seven surprises buried in the 116 paragraphs of the NOI—its seven deadly sins," states the author. "In many cases the Commission is merely asking questions," Downes adds, "[b]ut the questions hint at a much broader—indeed, overwhelming—regulatory agenda that goes beyond Net Neutrality and the FCC's attempt at reversal by fiat of the Comcast decision through reclassification."
What are these seven deadly sins?
- Pride: As the FCC attempts to define what services would be subjected to reclassification, the agency runs the risk of both under- and over-inclusion, which could harm consumers, network operators, and content and applications providers.
- Lust: The agency is reaching out for additional powers beyond its reclassification proposals — including an effort to wrest privacy enforcement powers from the Federal Trade Commission and putting itself in charge of cybersecurity for homeland security.
- Anger: The "Third Way" may dramatically expand the scope of federal wiretapping laws, requiring law enforcement "back doors" for a wide range of products and services.
- Gluttony: Reclassifying broadband opens the door to state and local government regulation, which would overwhelm Internet access with a deluge of conflicting, and innovation-killing, laws, rules and new consumer taxes.
- Sloth: As the FCC looks for a legal basis to defend reclassification, basic activities — such as caching, searching, and browsing — may for the first time be included in the category of services subject to "common carrier" regulation.
- Vanity: Though wireless networks face greater challenges from the broadband Internet than wireline networks, the FCC seems poised to impose more, not less, regulation on wireless broadband.
- Greed: Reclassification of broadband services could vastly expand the contribution base for the Universal Service Fund, adding new consumer fees while supersizing this important, but exceedingly wasteful, program.
"Reclassifying broadband Internet to apply common carrier rules designed for a telephone monopoly that has long since disappeared seems foolish enough on its own," concludes Downes. "Add these additional seven deadly sins to the mix, however, and the FCC has proposed perhaps the most dangerous expansion of federal power since the end of the Civil War."
The paper may be viewed here. Larry Downes is available for comment. Please contact Mike Wendy at email@example.com for more information.
The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. PFF is a 501(c)(3) research & educational organization.