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McDowell: Stopgap Title I Item Should Be Non-Starter

FCC Commissioner Robert McDowell, in a speech to
the Federalist Society, made it clear he thinks the FCC can't find the
authority under Title I because it isn't there. "After repeated and
exhaustive reviews of the statute and the record, I still can't find anything
close to a congressional directive for the FCC to regulate information services
as some have proposed over the years," he said.

McDowell addressed the reports that FCC Chairman
Julius Genachowski is preparing to vote on a version of expanded and
codified network neutrality rules under existing FCC authority based on a
failed legislative compromise. That would have sunset, in essence providing a
net neutrality stopgap. McDowell warned against what he called a "giant
leap into a potentially dark and dangerous regulatory abyss."

"Those who may think that the Commission will
escape another appellate rebuke merely by labeling a new Title I order as
'interim,'" he told his audience, "should reevaluate their strategy.
Although courts generally have been deferential to an agency when it issues an
interim order, it helps an agency's case tremendously if it can point to some
facts to justify such extraordinary action, such as an emergency - a real
emergency. In the case of regulating Internet network management, where is the
evidence of an emergency? Should administrative agencies be allowed to regulate
far beyond the bounds authorized by Congress merely by labeling an order as
'interim'? If so, wouldn't agencies' legal powers essentially be unlimited?
Wouldn't Congress become irrelevant in such a scenario?"

McDowell reiterated his idea of, rather than
adopting new regs, having the FCC get together with the FTC, other antitrust
and consumer affairs agencies and nongovernmental Internet groups to
"spotlight" allegations of anticompetitive conduct and punish it.

Industry groups have long argued that there are
relatively few examples of bad actors, something even some network neutrality
proponents concede. But those opponents also argue that one of the reasons may
be that the technology is getting so advanced that it may be happening
undetected, and that to wait until it is detected to decide it needs to be
proscribed will be too late to prevent the damage to an open Internet.

FCC Chairman Julius Genachowski has the three votes he needs to adopt
network neutrality regs, with the two other Democrats on the record supporting
them, though Commissioner Michael Copps, for one, has pushed for
reclassification of Internet access under Title II common carrier
regs rather than a compromise or interim approach.