FCC Power Grab Will Face Huge Legal Challenges

Despite strong bipartisan objections from a majority of congress, the FCC voted to move ahead to take public comments on FCC Chairman Julius Genachowski’s “third way” proposal to reclassify broadband providers under Title II common carrier status.

It’s truly amazing how we got to such a state of affairs. The FCC had gotten everything it wanted from Comcast before it even issued a ruling, and the entire reclassification movement is incoherent because it is based on a myth to begin with.

The whole thing is a manufactured crisis based on irrational hysteria over the DC Circuit ruling on the Comcast-vs-FCC case.

The courts have ruled many times in favor and against the FCC, yet the reclassification movement acts as if the DC Circuit ruling against the FCC was some earth shaking event that permanently strips the FCC of its authority unless the FCC does something extraordinary to counter it. The reality is that an FCC acting brashly to bypass the court’s ruling would likely result in a nasty rebuke from the courts.

The court has been very clear that it would reject any power grab by the FCC that would “free the Commission from its congressional tether”. With 74 congressional Democrats signing a letter opposing reclassification and the majority of Republicans on board, it’s clear that the FCC doesn’t even have the support of congress much less explicit authority. Furthermore, it appears that the FCC may be violating a legal precedent set in the Midwest Video II case.

Digital Society � Blog Archive � FCC third way – Shattering the congressional tether