A case challenging ‘net neutrality’ is making its way through the courts, and it’s revealing some interesting information. For example documents show that while the Federal Communications Commission was creating the regulation — it was working with the Obama administration, keeping it abreast with where it was in the process.
As this continues, Senator and Chairman of the Senate Homeland Security and Governmental Affairs Committee Ron Johnson released a report titled, “Regulating the Internet: How the White House Bowled over FCC Independence.” In it, he highlights problems in the process by which the agency arrived at its net neutrality order, being litigated in federal court.
In 2014, after being overruled in court, the FCC had an open hearing to again consider how to carry out net neutrality. However, shortly after the 2014 elections, President Obama urged the FCC to “implement the strongest possible rules to protect net neutrality.”
In particular, he wanted the FCC to unilaterally assert authority over Internet service providers (ISP) under Title II of the Communications Act, which allows for the regulation of “common carriers” as public utilities. The report points to evidence of a “pause” and a change in the FCC’s course after the President’s comments.
FCC Chairman Tom Wheeler and staff were finishing work on a different approach in November 2014 before Obama’s comments. However, shortly afterwards, Wheeler instructed his staff to draft an order following the President’s proposal of a Title II reclassification.
This rule prohibits ISP’s from charging for legal content flow through their networks. To enforce this, the FCC reclassified broadband as a more highly regulated telecommunications service.
Obama appointed Wheeler, a Democrat, as FCC chairman. The agency’s Democratic majority pushed through the regulations by a 3-2 vote in February 2015.
Details of the report also include the fact that before the White House’s announcement in support of Title II reclassification, the staff worked over the weekend to provide Wheeler with a draft Open Internet Order, adopting a “hybrid approach,” to be considered on the FCC’s December 2014 Open Meeting, but after Obama’s statement there was confusion and the rapid timetable for completing the draft Open Internet Order was “paused.”
The FCC employees also raised concerns about following proper notice-and-comment rules, as required under the Administrative Procedure Act. They advised that the record to support Title II reclassification was lacking and needed more public comments, but despite this, the agency chose not to seek additional public comment, and proceeded with the president’s preferred policy outcome.
Finally, over the course of the committee’s investigation, the FCC refused to provide key responsive documents. Moreover, in the e-mails provided to the committee show there was an attempt by some to thwart transparency and avoid ex-parte filings.
In the end, net neutrality isn’t neutral at all. Instead it is a ‘play on words,’ meant to abridge free Internet commerce and a violation of the 10th Amendment of the U.S. Constitution, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”