Opinion: With the Stroke of a Pen

Day 10: President Obama, Julius Genachowski ignore law to regulate the Internet

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Conn Carroll,Barack Obama,President,Media,Executive Power Series,Technology

Part 10 of the Washington Examiner's 10-part series "With the Stroke of a Pen: How Obama abuses executive power to make the law of the land."

Soon after the Associated Press first reported in 2007 that Comcast was blocking some customers from using the Internet file-sharing program BitTorrent, a number of leftist activist groups filed a complaint with the Federal Communications Commission asking the agency to issue an order halting the practice.

At the time, sharing of large computer files through applications like BitTorrent accounted for somewhere between 50 and 90 percent of all internet traffic.

The FCC then issued an order in 2008 banning Comcast from interfering with BitTorrent, or any other file-sharing program application.

Comcast challenged that order in federal court, arguing that nothing in federal law gave the FCC the power to regulate how Comcast managed its broadband network.

By that time, the principle behind not allowing Internet providers the freedom to manage their own networks -- branded by traditional media and liberal activists as “net neutrality” -- had become an article of faith on the Left.

Every 2008 Democratic presidential candidate, including President Obama, pledged to implement the policy if they became president.

And, shortly after he became president, Obama appointed Julius Genachowski, his campaign's Technology Media and Telecommunications Policy Working Group chairperson, as FCC chairman.

About this series

On Nov. 16, 2010, just days after voters gave Republicans control of the House of Representatives, the progressive think tank Center for American Progress published a report titled "The Power of the President."

Obama-Biden Transition Project Chairman John Podesta introduced the report, writing that "in the aftermath of this month's midterm congressional elections, pundits and politicians across the ideological spectrum are focusing on how difficult it will be for President Barack Obama to advance his policy priorities through Congress."

"Some debate whether the administration should tack to the center and compromise with the new House leadership," Podesta continued.

"As a former White House chief of staff, I believe those to be the wrong preoccupations. President Obama's ability to govern the country as chief executive presents an opportunity to demonstrate strength, resolve, and a capacity to get things done," Podesta said.

Not only did Obama almost immediately embrace the report's call for maximizing executive power to achieve progressive ends without Congress, it even branded the effort "We Can't Wait," thus advertising the fact that Obama had abandoned all pretense of following the U.S. Constitution's carefully drawn separation-of-powers doctrine.

In this Washington Examiner series, Senior Writer Conn Carroll documents the many times Obama has flagrantly abused executive authority to advance his liberal agenda without congressional approval.

The top 10 instances will be examined over the next two weeks, and more will come later.

Stories in this series

1. Immigration amnesty by executive memo

2. The employer mandate delay

3. War in Libya

4. The illegal Solyndra contract modification

5. Rewriting federal education law by waiver

6. Unconstitutional NLRB appointees

7. The Yucca Mountain delay

8. Gutting welfare reform

9. The Gulf of Mexico drilling moratorium

10. Regulating the Internet

By September 2009, Genachowski began the formal rulemaking process to make net neutrality official policy of the FCC. But in April 2010, the United States Court of Appeals for the District of Columbia found for Comcast and ruled that the FCC has no legal authority to regulate how cable companies manage their broadband networks.

In the Comcast case, the FCC admitted that nothing in federal law grants the government the express authority to regulate cable Internet services.

Instead, Obama’s FCC argued that it has an “ancillary authority” to regulate broadband thanks to section 4(i) of the Communications Act of 1934.

That act reads: “The commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”

The court rejected this argument, noting that “if accepted, it would virtually free the commission from its congressional tether.”

The court then emphasized that “commission counsel told us at oral argument that just as the order seeks to make Comcast’s Internet service more ‘rapid’ and ‘efficient,’ the commission could someday subject Comcast’s Internet service to pervasive rate regulation to ensure that the company provides the service at ‘reasonable charges.’”

Were the court to accept the commission's argument, “we see no reason why the commission would have to stop there.”

Obama and Genachowski then could have sought new legislation in Congress expressly granting the FCC the legal authority to regulate how broadband providers managed their networks.

For whatever reason, they didn't. Instead, seven months after Obama lost in federal court, the FCC issued new “net neutrality” regulations on Dec. 20, 2010.

This time, however, the commission claimed that section 706 of the 1996 Telecommunications Act gives it authority to regulate broadband.

That is an ironic assertion since section 706 actually calls on the FCC to remove regulatory barriers to broadband deployment, not to create new ones.

In fact, as recently as 2009, it was FCC policy that section 706 “does not constitute an independent grant of authority” to regulate broadband.

But losing the Comcast case apparently moved the FCC to change its mind. As a result, a congressional statute meant to speed deregulation is being used by an Obama agency to justify creating more regulations.

And again it looks like the United States Court of Appeals for the District of Columbia will reject Obama’s unilateral attempt to regulate the Internet.

During oral arguments Sept. 9, 2013, the same judge who wrote the Comcast decision compared the FCC's new net neutrality regulations to the agency’s earlier failed efforts to force cable companies to provide public-access channels.

"Isn't that exactly this case?" Judge David Tatel, a Democrat, asked.

Given Obama's long record of ignoring Congress and the law, don’t expect another courtroom loss to stop him from inventing yet another new legal theory to regulate the Internet sometime soon.

Conn Carroll is a senior editorial writer for the Washington Examiner.

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