Upton Draws Line In Sand

Rep. Fred Upton (R-Mich.), the newly
minted chairman of the powerful House
Energy & Commerce Committee, isn’t
shy about expressing his views. He suggests
that the FCC is trying to take over
the broadband industry and says he
will try to stop it. In an e-mail interview
with Multichannel News Washington
bureau chief John Eggerton, Upton gave
an early read on his telecom priorities,
saying that he would try to help update
the “horribly outdated” media-ownership
regulations. First, though, he vowed
to block the FCC’s attempt to codify
media-ownership rules.

MCN: At press time, the FCC was scheduled
to vote on the network-neutrality
order Dec. 21. Why are you opposed to the
rules?

Fred Upton: First of all, there’s no crisis that
needs solving here.

For more than 10 years, the FCC under
both Democratic and Republican administrations
has recognized that the Internet has
been such a success because we have kept it
free of government intrusion.

Section 230 of the Communications Act
enshrines that principle by making it the policy
of the United States to leave the Internet
unfettered by state or federal regulation. If
anything, intervening will hurt investment,
innovation, and jobs. The FCC has failed to
provide any rigorous examination of whether
any entity has market power in this space
and whether consumers are being materially
harmed in any way.

And despite our repeated requests for
hearings on this topic, we had none this Congress.
The claim that these are just ‘rules for
the road’ that everyone agrees with does not
hold water. If that’s all they are, why is the
proposal to selectively enforce them only
against Internet service providers? It is becoming
more and more clear that this is just
an attempt to make good on a campaign
promise. The people spoke against takeovers
of industry in the recent election. The
fact that the FCC appears to be ignoring that
and rushing to finish this proceeding before
the new Congress convenes only reinforces
the sense that this is about politics, not good
policy.

Second, there has been an almost total disregard
for sound legal analysis of the FCC’s
authority. The FCC has espoused almost as many different
theories as
they have had
meetings in
this proceeding.
An agency’s
authority in
our representative
democracy
comes from
the Congress.
By acting without
clear guidance from Congress, the FCC
threatens its legitimacy.

Even more troubling than the substance
of the proposal is the precedent it would set
for FCC authority if left unchallenged. The
FCC is essentially arguing that anytime the
evolution of new services and technologies
could have an impact on the legacy voice
and video services it regulates, or might
have some effect on broadband, it can also
regulate those new services and technologies
without limit.

MCN: What should the FCC do?

Upton: When changes in an industry
outpace an agency’s statute, the correct
course is to come back to Congress, not
create authority from whole cloth. To do
otherwise would make the statute — and,
in fact, the Congress, irrelevant. Every innovator,
regardless of their view of network
neutrality, should be troubled by
what this means the FCC might do next
without any Congressional input. And it is
not acceptable to tell industry that if they
don’t accept one proposal, they will get a
more onerous one. Nor is it acceptable to
tell Congress that if it doesn’t pass a law
the FCC will go forward without it. It is the
prerogative of Congress to say ‘no,’ when
asked if it is appropriate to expand government’s
role.