O'Rielly Decries FCC ‘Power Grab' of Internet

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By Tripp Baltz

Aug. 18— The Federal Communications Commission's Open Internet Order was a “power grab” by an agency that sees its authority over the Internet as “pretty much limitless,” FCC commissioner Michael O'Rielly said.

“The current commission doesn't believe in the law,” O'Rielly said Aug. 17. “The law is just something for certain people in the general counsel's office to try to get around.”

The February 26 order, approved on a 3-2 party-line vote, reclassified broadband Internet services—including, for the first-time, wireless broadband—as telecommunications services under Title II of the Communications Act of 1934. It granted the FCC significant new regulatory authority over Internet service providers such as Comcast Corp. and Verizon Communications Inc.

Edge Providers Next?

O'Rielly said if the commission wants new or expanded authority, it should seek it from Congress – not seize it by issuing its own order.

The order says to large edge providers such as Google's YouTube, Amazon and Apple iTunes, “we're coming for you next,” said O'Rielly, speaking during a panel discussion at the 2015 Technology Policy Institute Forum in Aspen, Colo. TPI is a Washington, D.C.-based 501(c)(3) research think tank that is funded primarily by large communications and media companies, and which favors limited regulation.

“We will threaten providers with enforcement and continue to be on a course of expanding our authority,” O'Rielly said. “We have grown the scale of what the FCC can do in the future.”

Other panelists agreed. “The Open Internet Order is not about net neutrality, it is about the FCC regulating the Internet,” said David Redl, chief counsel of the House Energy and Commerce Communications and Technology Subcommittee.

Preempts FTC

The FCC's Title II approach preempts the Federal Trade Commission's jurisdiction, Redl said. “It's hard not to see this as a power grab,” he said. “Preemption was a directly intended consequence of the order. The FCC hasn't made an evidentiary ruling here other than ‘it serves our purpose.’”

The order has the potential to “put a drag on the Internet space” and cause harm to “what has been a huge benefit to the U.S. economy,” said Rebecca Arbogast, senior vice president for Global Public Policy for Comcast. Private investment has helped Internet speed to grow 16 times in the last 13 years, doubling capacity every 18 months, she said.

Robert Quinn, senior vice president for AT&T Inc., said after the Title II order he predicts the FCC “will move into privacy and wholesale rate regulation.”

Wholesale Rate Regulation

“Rate regulation is what Title II is all about,” Quinn said. “That process will begin this fall. But how are they going to regulate Google?”

Several Internet companies are challenging the order in the U.S. Court of Appeals for the District of Columbia. Panelists discussed how the court might ultimately rule.

American University law professor Jonathan Baker said he believed the D.C. Circuit will uphold the order, since the FCC “followed a roadmap” put forward by prior court rulings.

The order “is about protecting non-discrimination on the Internet, it's not a power grab,” Baker said.

If the order is overturned, Quinn said, “the next day, nothing happens. The Internet is not going to become a closed sphere. Internet service providers all have enforceable open internet policies.”

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

The FCC's Open Internet Order is at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-24A1.pdf