Two of Five FCC Commissioners: FCC Doesn't Have Legal Authority to Regulate Internet

By Matt Cover | February 7, 2011 | 4:01 AM EST

( – Two of the five commissioners on the Federal Communications Commission (FCC) said that the Commission lacks the legal authority to regulate the Internet, predicting that the recent regulations issued by the commission in December will be struck down in federal court.

In December 2010, the FCC voted 3-2 to pass new regulations on Internet Service Providers (ISPs) that prohibited them from discriminating against different websites and other internet content providers. The two Republican-appointed members of the commission dissented, arguing that the FCC lacked the legal authority to regulate the Internet.

Those commissioners reiterated their claims Friday, saying that federal law did not grant the FCC the power to issue the December regulations, predicting that a federal court challenge brought by cable giant Verizon would succeed and the rules would be struck down.

“No, I don’t think we have authority to regulate the Internet,” Commissioner Meredith Attwell-Baker said at a Washington telecom conference Friday. “I think that that’s a question for Congress.

“I think the courts will turn around our current net neutrality order, and I look forward to continuing the discussion with Congress as to what they want the FCC to do regarding regulation of the Internet.”

Net neutrality is the term coined by liberal activists who want the government to regulate the way ISPs do business – claiming that unless government steps in the large corporations will discriminate against smaller websites and less-popular content providers.

While this has never actually happened, the activists claim that as more and more people look to the Internet for things like music and movies, ISPs will begin playing favorites and restricting access to websites they don’t own or who can’t afford to pay for premium access.

Commissioner Robert McDowell said that while the Telecommunications Act of 1996 did briefly mention the Internet – then an emerging technology – the law meant for government to take a hands-off approach so that the market could function efficiently and competition could ensure that the Internet developed into a dynamic service.

“The FCC has very limited authority,” McDowell explained. “As we come up on the 15th anniversary of the 1996 telecom act this coming Tuesday February 8, [the] Internet is mentioned in that act a few times. Not a lot, but a few.

“And I think that when Congress did not act to give explicit authority for the regulation of internet network management that was evident. The bent of Section 706 [the section that deals with broadband internet networks] is deregulatory, and 706 has been used most recently in the internet network management order of December 21 [2010] to justify those regulations,” he added.

McDowell said that he thought that the FCC lacked the authority to issue those regulations, predicting that the courts would strike them down.

“I think it’s clear both from the plain language of Section 706 and its legislative history and the judicial interpretation of it that that does not give the Commission the authority that the majority was seeking,” McDowell said.

“So I think the Commission is hard pressed to find the authority to support its rules,” he added.

McDowell then said that the order most likely “goes down in flames.”