I recently complained that no one else ever seems to follow the record on the network neutrality stuff. But Commissioner McDowell took the prize for failure to remember what he had previously voted for in this very proceeding back in March 2007 when the Commission voted out the Notice of Inquiry that started this whole thing. Mind you, McDowell should not feel too bad, given that nobody else at the FCC seems to remember this stuff either. Not when they wrote the Comcast/BitTorrent Order, nor even when it wrote the Notice of Proposed Rulemaking last week. Despite the fact that both items are actually in the the same blasted docket. Because good God almighty, how hard is it for the staff at the FCC to actually know the friggin' docket? It's just the basis for this entire proceeding. And the entire collective agency cannot remember that it voted as settled law by 5-0 that it has authority to regulate and enforce network neutrality rules. And that McDowell not only voted in favor, he explicitly concurred!
I swear, it's enough to make a poor obsessed policy wonk tear out what's left of his hair and beard.
OK, for those who cannot trouble themselves to click through and read the relevant links, here's what the FCC said about jurisdiction to create and enforce rules in a 5-0 vote in 2007:
4. The Commission, under Title I of the Communications Act, has the ability to adopt and enforce the net neutrality principles it announced in the Internet Policy Statement. The Supreme Court reaffirmed that the Commission “has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.” Indeed, the Supreme Court specifically recognized the Commission’s ancillary jurisdiction to impose regulatory obligations on broadband Internet access providers.
The Commission may exercise ancillary jurisdiction under Title I when: (1) Title I confers subject matter jurisdiction over the service to be regulated; and (2) the assertion of jurisdiction is reasonably ancillary to the effective performance of the Commission’s responsibilities. Both of these conditions are met with respect to the four principles of the Commission’s 2005 Policy Statement. Indeed, the Commission found “that both of the predicates for ancillary jurisdiction are likely satisfied for any consumer protection, network reliability, or national security obligation that we may subsequently decide to impose on wireline broadband Internet access service providers.”
First, as the Commission stated, broadband services are “wire communications” or “radio communications,” as defined in sections 3(52) and 3(33) of the Act, and section 2(a) of the Communications Act gives the Commission subject matter jurisdiction over “all interstate and foreign communications by wire or radio.”
Second, section 1 of the Communications Act confers responsibility on the Commission “to make available . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” This responsibility is guided by the “policy of the United States . . . (1) to promote the continued development of the Internet”; “(2) to preserve the vibrant and competitive free market that presently exists for the Internet”; and “(3) to encourage the deployment of technologies which maximize user control over what information is received by . . . [users of] the Internet.”
(footnotes omitted). And what did Commissioner McDowell have to say about this assertion of jurisdiction?
I agree with my colleagues that we must remain vigilant against possible market failure or anti-competitive conduct that would hamper the full development of the Internet and related services being provided to consumers. But we also must resist the temptation to impose regulations that are based merely on theory. Today, we take a sensible, thoughtful and reasonable step that should give the Commission a factual record upon which to make a reasoned determination whether additional action is justified or not, pursuant to the Commission’s ancillary jurisdiction to regulate interstate and foreign communications. I look forward to reviewing the information that this proceeding yields.
(emphasis added). So two and a half years ago, Commissioner McDowell was so utterly certain of the Commission's jurisdiction that he not only voted for it, he expressly acknowledged it in his concurring statement. So what did McDowell have to say about it last week?
Although I respectfully disagree with the factual and legal predicates that have produced this item today, I agree that if we are to have rules the proper way to proceed is a notice of proposed rulemaking containing the text of proposed rules. These issues are complicated and highly technical and deserve the lengthy comment period the Chairman has suggested. The longer time frame may also allow us to receive guidance from the court on our legal authority to proceed as may be decided in the Comcast/BitTorrent appeal.
I suppose I could more easily give McDowell a free ride on his forgetting that he had previously voted on and approved the “legal predicate” for this rulemaking if he hadn't managed to remember (and, in my view, misconstrue) just about every other proceeding in which the subject of network neutrality came up in the last two and a half years — including some at other agencies. But does he go back and review the Notice of Inquiry that he personally voted on that got this ball rolling back in March 2007?
I'm not saying McDowell couldn't reasonably have changed his mind about the jurisdictional issue. I'm just saying that since he did vote in favor of an unequivocal assertion of jurisdiction previously, and even went so far as to highlight his agreement with this assertion of jurisdiction in his concurring statement, it would have been nice if he had actually acknowledged his previous vote and explained why he changed his mind. Heck, I would have thought he would have at least reviewed the 2007 NOI before popping off, just to be safe. The whole thing was only 11 paragraphs long! His concurrence was a flippin' page! It is the first thing in this whole . . . bloody . . . . record!!!! It would have taken him a whole five minutes.
But again, I really can't be too hard on McDowell here. NOBODY else bothers to read this stuff. You'd think the official vote of five Commissioners on the jurisdictional question had never even happened. The stupid NPRM doesn't bother to mention it either. You'd think an NPRM that troubles to review the history and note that “we are not writing on a blank slate” would also note “Hey! Remember that time we actually started this proceeding and we all voted 5-0 that we had authority to codify these principles as rules and enforce them? Boy, that really takes me back, ya know? I guess we can stop worrying about our authority because we already voted 5-0 we have jurisdiction and authority, right Commissioner McDowell? After all, you were there and voted for it.”
But no, it doesn't say that. It doesn't even mention that the Commission voted 5-0 at the beginning of this proceeding that it had sufficient legal authority and jurisdiction to codify and enforce the rules. Because no one over there bothers to read the relevant stuff in the docket. Feh.
Well, I've done my curmudgeonly duty for another blog post. I'm gonna go drink my warm milk and go to bed. We old policy wonks who actually read stuff need our sleep. As you can see, staying up too late makes us far too grumpy.