Commissioners Slam FCC, FEC for Latest In-Tandem Attempts to Regulate Internet

Rudy Takala | February 23, 2015 | 5:28pm EST
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FCC Commissioner Ajit Pai holding 332-page draft of proposed "net neutrality" regulations that the FCC intends to vote on without disclosing them to the public. (Twitter) – Commissioners from the Federal Communications Commission (FCC) and the Federal Election Commission (FEC) joined forces to criticize their independent agencies for their latest in-tandem attempts to expand federal regulation of the Internet.

In a Monday op-ed co-authored for Politico, FCC Commissioner Ajit Pai and FEC Commissioner Lee Goodman wrote that “Internet regulation isn’t the solution to a problem. Internet regulation is the problem."

The FCC is set to vote Thursday on “net neutrality” rules that would regulate Internet Service Providers as utilities. Polling has found that only nine percent of Americans support the proposed rules.

Pai and fellow Republican Commissioner Michael O’Rielly have been outspoken in opposing passage, but they are outnumbered by the three Democrats on the FCC who are expected to vote for more regulation of the Internet.

On Monday, FCC Commissioners Pai and O’Rielly called for the vote on net neutrality to be delayed until the details are made public.

Meanwhile, the FEC has been holding public hearings to discuss ways to require financial disclosure from people who post political content online.

“Without government regulation, political speech and civic engagement have flourished on the Internet, and ordinary citizens have had the same freedom and ability to disseminate their political opinions to a wide public audience as large media corporations,” Pai and Goodman wrote.

FEC Commissioner Lee Goodman. (Federal Elections Commission)

“The bottom line is that Internet freedom works,” they added. “It is difficult to imagine where we would be today had the government micromanaged the Internet for the past two decades as it does Amtrak and the U.S. Postal Service. Neither of us wants to find out where the Internet will be two decades from now if the federal government tightens its regulatory grip.”

In their op-ed, the two Republican commissioners touched on a recent case to come before the FEC involving videos posted on YouTube:

“The FEC finds itself locked in a renewed debate over the regulation of online political opinions. The debate was triggered last October when commissioners split 3-3 in a case involving a group that posted two political videos on YouTube without reporting them to the FEC.”

The videos, titled, “Why would you lie?” and “The War on Coal: Sherrod Brown v. Ohio Coal Miners,” focused on coal mining in the presidential race and the Ohio Senate race, respectively. They were posted to YouTube during the 2012 election cycle by a group called Checks and Balances for Economic Growth.

The commissioners’ comment was in reference to a complaint filed against Checks and Balances by another group, Citizens for Responsibility and Ethics in Washington (CREW), for allegedly failing to disclose the production costs of the two videos.

However, according to rules adopted by the FEC in May 2006, such communication on the Internet is supposed to be exempt from federal oversight.

Nevertheless, in recent years, the FEC’s three Democratic members have voted to disregard the commission’s standing rules by trying to take action involving the Internet in certain cases, such as the Checks and Balances case.

In their oped, Commissioners Pai & Goodman reference another FEC complaint filed against CREW itself. “Two months later, commissioners split again over the metes and bounds of the 2006 Internet freedom rule in a case involving an organization that simply posted political news releases on its own website,” they wrote.

In that case, it was alleged that CREW had failed to report – among other things – four press releases it posted to its own website "challeng[ing] the character and fitness for office of [Delaware Senate candidate] Christine O'Donnell."

The FEC’s three Republican members voted to dismiss the case, while the three Democratic members voted to pursue it further, again in contravention of the FEC’s standing 2006 rules.

“Even though it would require four votes for the FEC to regulate the Internet, these close votes and the risk of idiosyncratic case-by-case enforcement inevitably discourage citizens and groups from speaking freely online about politics,” Pai & Goodman wrote.

Ironically, CREW is among the organizations now calling for campaign finance laws to apply to political content posted on the Internet. In a comment submitted to the FEC in January, CREW wrote that the FEC should try to extend the Federal Election Campaign Act (FECA), which governs campaign finance law, to online communication.

Generally, FECA allows the FEC to regulate content that takes place by satellite, cable, or broadcast transmission. In its proposal, CREW suggested that the FEC should redefine the Internet so that it falls into one of those categories.

“More than 80 percent of Americans have access to the Internet, over half of them receive it via cable, and even more do through satellite. As a result, the Commission may have the discretion to determine that electioneering communications carried through cable and satellite Internet connections must be reported,” CREW argued.

CREW went on to suggest that the FEC ask Congress to redefine the Internet statutorily. “In any case, in future legislative recommendations, the Commission should encourage Congress to expand FECA to cover electioneering communications transmitted over the Internet,” the proposal reads.

Last week, Pai teamed with Federal Trade Commissioner (FTC) Joshua Wright in an op-ed in which they described how net neutrality rules would redefine regulatory power in a manner that would wind up being less transparent than in the past.

“We should have an open, transparent debate about whether the… plan for Internet regulation is right for America's consumers,” the duo wrote. “In our view, it most certainly is not.”

Unlike the FCC, the FEC, which consists of a 3-3 split between Republicans and Democrats, can only move forward in the unlikely event that one party member breaks rank to vote with the other side.

Related: Federal Election Commission to Consider Regulating Online Political Speech

Related: FEC Urged to 'Push the Limit' in Expanding Oversight of YouTube, Facebook, Instagram

Related: FCC Commissioner Speaks Out Against Federal Regulation of Internet

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