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Culberson: FCC Can’t Regulate the Internet

In recent years, the question of whether and how the government should regulate the Internet has moved to the forefront of the telecommunications debate. Before we can answer that question, we must look at existing law to determine whether Congress has even granted the government this authority.

Last month, Julius Genachowski, chairman of the Federal Communications Commission, argued before the House Appropriations Subcommittee on Financial Services that the FCC does, in fact, have this authority. I asked him to show me the statute that gave the FCC the authority, but he dodged the question and remarked that FCC lawyers believe they can reclassify broadband in such a way that grants the FCC the authority to regulate the Internet.

Relevant to this discussion are two classifications of communications and the regulatory rules that they are subject to under the Communications Act of 1934, as rewritten in 1996. Broadband Internet has long been classified as an “information service,” which is subject only to the ancillary authority defined in Title I of the law. This classification was upheld in 2005 by the Supreme Court in the Brand X case. The second category is “telecommunications” service, which is subject to mandatory regulation under Title II.

Earlier this year, the D.C. Circuit Court of Appeals unanimously ruled in the case of Comcast Corp. v. Federal Communications Commission that the FCC has neither express nor ancillary authority to regulate the Internet. In fact, the opinion of the court even states that “[i]n this case, the Commission does not claim that Congress has given it express authority to regulate Comcast’s Internet service.”

Rather than appeal the ruling, the FCC has gone back to the drawing board. In a paper released in May, Genachowski announced that the FCC will reclassify broadband as a “telecommunications” service under Title II and wagered that, by forbearing several sections in that Title, the move will pass legal scrutiny. In doing so, the FCC is attempting a legal two-step to get around years of precedent and rulings from both the U.S. Circuit Court of Appeals and the Supreme Court.

The FCC cannot regulate the Internet without clear and unambiguous statutory authority from Congress, which it does not have. But instead of coming to Congress and asking for it, the FCC lawyered up and attempted to bend the rules to its liking.

As a member of the Appropriations Committee, I forcefully oppose spending our tax dollars on the legal misadventures of the FCC. I will be offering an amendment to prohibit funds from going to the FCC for the purpose of regulating the Internet in general. The courts have spoken, and their conclusion is that the FCC does not have the authority to do what it’s trying to do. Until that authority is granted by Congress, it has no business using tax dollars for this power grab.

With that being said, it’s important to note that there are clearly certain aspects of the Internet that need express regulation — namely cybercrime. The FCC ought to have the complete authority to assist in hunting down and eliminating child pornography. I have reached out to my Democratic colleagues on the subcommittee to work with me on legislation that would grant the FCC explicit and narrow authority to keep child pornography off the Internet. The people who perpetrate these crimes against children are some of the most vile and reprehensible creatures on the face of the planet.

I am hopeful that these amendments will garner strong support from both sides of the aisle. I think it’s important to recognize the remarkable strides the Internet has taken as a market-driven resource. As it continues to evolve, it will inevitably present new challenges, but I will always urge restraint when it comes to any sort of regulation of the Internet.

Rep. John Culberson (R-Texas) is a member of the Appropriations Subcommittee on Commerce, Justice and Science.

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