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Texas Congressman Plans Sneak Attack on the FCC

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Some time in the next couple of weeks, Rep. John Culberson (R-TX) is expected to try a backdoor parliamentary move to short-circuit the work of the Federal Communications Commission (FCC) to establish some reasonable rules of the road to help make certain everyone can get connected to the Internet.

Ironically, news of Culberson's plans comes just as there's yet another report of the U.S. slipping in broadband compared to the rest of the world. The FCC is expected to make a similar report soon.

He wants to prevent the FCC from what he calls "regulating the Internet." Except in the instances in which he wants to "regulate" it, of course. Culberson is a member of the subcommittee that determines the funding for the FCC and will attempt to use his influence over the agency's budget as a means to prevent the agency from trying to fix a past mistake in broadband policy, bypassing the normal committees with jurisdiction over the FCC's policies. (This kind of thing happens from time to time in Washington and is a familiar inside-baseball play. For the outside world, however, it seems a bit sneaky.)

The problem is that in blindly pursuing AT&T's talking points while badgering FCC Chairman Julius Genachowski at a hearing, the former trial lawyer (yes, Republicans can be trial lawyers, despite their party's dislike of them) has presented a weak case that no judge or jury would ever buy for the simple reason that both he and FCC Chairman Julius Genachowski agree on the fundamental point of contention. Neither wants to "regulate the Internet."

Granted, the issues involved can devolve into legal technicalities over which services the FCC has jurisdiction. But those are technicalities over which Culberson glosses time after time, not listening to the replies he got from Genachowski at a hearing a few weeks back.

Culberson created his own reality in which he, the crusading Congressman, is saving the Internet from meddlesome, evasive, empire-building bureaucrats while fighting for justice and truth. The problem with creating one's own reality is, well, reality. When the two realities collide, it's best to give the nod to the real reality rather than the fake one (although heaven knows there's enough fake reality going around.)

Start with this exchange at the June 6 hearing (taken from a transcript of the hearing). Culberson has asked Genachowski several times about the FCC's intention to "regulate the Internet."

There are always lawyers that can tell you that no matter, despite this mountain of Supreme Court decisions, and this most recent explicit Court of Appeals decision, that you do not have ancillary jurisdiction, and despite all these decisions from the FCC over the last 10 years, that you don't have the jurisdiction or the authority to regulate Internet; we're just going to do it anyway is what you're telling me.

No, sir, that's not what I'm telling you. I'd be happy to...

Well, sure it is.

We're not going to regulate the Internet.

Let me just ask you again, where in the law, what statute specifically gives you this authority, and what court case gives you this authority explicitly, when you've got a unanimous opinion from the D.C. Circuit that says you do not have "untrammeled freedom to regulate activities over which the statute fails to confer you that authority."

Genachowski said fairly plainly that the FCC is "not going to regulate the Internet." It would seem that he answered Culberson's accusation, but alas, it was not to be, as Culberson kept up the line of questioning for the source of the FCC's authority to do something the FCC Chairman said the agency did not want to do.

With respect, I believe we have authority.

Where? Where?

Under Title II.

Where? Where?

Many people believe we have authority under Title I.

OK, show me. Tell me the -- tell me the provisions. Where?

Title II applies in...

What statute?

"What statute?" In a discussion of arcane telecommunications law governed by one law, the Communications Act, Culberson asked to which statute the FCC Chairman was referring. Genachowski went on to try to explain about the various parts of the Communications Act which might apply according to assorted interpretations. As much as Genachowski tried to answer, Culberson cut him off.

So why, then, did Culberson write in an opinion piece, "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."

As the transcript showed, there not a "dodge" in Genachowski's answer and makes clear that the FCC has no intention to "regulate the Internet."

Part of Culberson's confusion as he dips into the detail of telecomm law, is that he misquotes and misinterprets past Commission and FCC decisions.

In the June 6 hearing, Culberson purported to quote a decision from the U.S. Appeals Court: "Therefore let me just quote you the -- this is the D.C. Court of Appeals. 'The FCC acknowledges that you have no express statutory authority over the regulation of the Internet.' I'm quoting from the D.C. Court of Appeals opinion. That was your position in court. Are you telling this committee that your position today on -- what is it -- June 10th is different from the position you had in the D.C. Court of Appeals?"

That's not what the opinion said. This is a quote from the actual opinion: "In this case, the Commission does not claim that Congress has given it express authority to regulate Comcast's Internet service."

Now, let's parse the difference, and please be patient as we delve into some telecom arcana. This is important because based on his misinformation and misperceptions, Culberson wrote he would offer an amendment to the FCC's budget "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."

On the other hand, if a member of Congress with voting power over the FCC's budget delves into policy like this, he should know what he's talking about. The first difference to note is that Culberson uses the term "regulation of the Internet." The Court refers to Comcast's Internet service." That is a crucial difference and the heart of the matter. The great AT&T/Verizon talking point as parroted by their friends in Congress is that the FCC wants to "regulate the Internet." The Internet is a great, worldwide web of applications, service, web site and the like. No one has said anything about regulating the Internet, as Genachowski said quite clearly that could be understood by all - or at least by most.

The Court referred to "Comcast's Internet service." The court case was about the authority of the FCC to regulate the service Comcast offers that connects people to the Internet - the high speed Internet service Comcast offers. The issue on which the FCC has proposed to act is the defining the legal standing of the Internet access service. The Bush-era FCC decided in 2002 to take Internet access out of the definition of traditional telecommunications services and try something else not by saying it had the direct, or express authority, but because Internet access was related to something it already regulated. It was that "something else" that the Court struck down in April, saying that indirect approach, brought on by the regulatory shell game, was wrong.

Genachowski simply wants to correct the past mistake, put the Internet connectivity eggs back into the telecommunications service back in the right basket and move on. The FCC reclassified the Internet access service to the benefit of industry in 2002 and nobody complained. Now the agency simply wants to take another look, and the big telecom carriers and their Congressional spokesmodels are raising holy Hell that the FCC wants to regulate the Internet. Go figure.

Culberson attacked the FCC chairman saying in the hearing that "You've got a unanimous decision from the D.C. Court of Appeals; you have 10 years of precedent from the FCC in decisions and from the U.S. Supreme Court that you do not have the authority or jurisdiction to do what you are attempting to do." To be clear, the D.C. Court of Appeals unanimous decision said the Bush way of regulating didn't give the FCC the authority to regulate Internet access. There are not 10 years of precedent-setting decisions saying the FCC doesn't have the authority.

As opposed to what Culberson doesn't want the FCC to do, what he wants to do is prohibit the transmission of child porn online. That's already illegal, and authorities are constantly busting online child porn rings. Any further speech restrictions are a lot more murky, as a series of cases since the passage of the 1996 Telecom Act have shown.

As the June 6 hearing ended, he actually suggested authorizing TV broadcasters to take unused spectrum and become Internet service providers and provide some spectrum to first responders. Genachowski pointed out that TV is a one-way medium and said, "I wish it were easy."

Culberson's grasp of industry talking points is firm. His grasp of telecommunications law and technology less so. Making use of the appropriations process to further the telecommunications industry's talking points which show everything is rosy doesn't help anyone.

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