Does FCC Have Power To Issue Neutrality Regs?

by Wendy Davis, Oct 23, 2009, 5:15 PM

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The lobbying in advance of the Federal Communication Commission's vote to move forward with neutrality rules was so frenzied -- and, in some cases, so incompetent -- that it drew a rebuke yesterday from commission member Mignon Clyburn.

"Unfortunately, some parties seem to prefer radioactive rhetoric and unseemly and unbecoming tactics," she chided. "Such an approach may yield headlines, but will not yield positive results with me."

Just how bad was the lobbying? One Congressman, Jared Polis (D-Colo.), signed a letter opposing neutrality just days before he circulated a letter advocating new rules.

Or consider AT&T's tactics, which included asking its 300,000 employees to lobby on the telecom's behalf.

Some efforts were comically sloppy. In one case, a letter signed by Bob Sells on behalf of the Arkansas Retired Seniors Coalition -- a group of senior citizens Sells knows -- was sent with the phrase "XYZ Corporation" in place of the group's name. Sells, a 77-year-old retired public relations executive in Little Rock, tells MediaPost that he often writes letters with placeholders and fills in the correct text later, but overlooked the reference to XYZ in this case. Sells also says he sent the letter because he's wary of government regulation in general.

Still, for all the questionable lobbying attempts, there are real questions about whether the FCC has the authority to issue neutrality regulations. Digital rights group Electronic Frontier Foundation raises a valid concern when it warns that if the FCC has power over the Web, there's nothing to stop the agency from attempting to regulate content online -- the way it imposes decency standards on TV.

Comcast has also raised that issue. The company has asked an appellate court to vacate the FCC's decision sanctioning the company for throttling peer-to-peer traffic on the ground that the agency lacked authority to issue the ruling.

If the courts agree with Comcast (and the EFF), it could very well take an act of Congress to impose neutrality rules -- in which case all of this frenetic activity surrounding the FCC's decision to proceed with rulemaking will have been in vain.

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