Two Scathing Dissents on the FCC’s Illegal, Unnecessary & Harmful Net Neutrality Order

The FCC’s order still isn’t out (just a news release in .DOC form), but the Commissioner’s accompanying statements are. Anyone interested in net neutrality regulation or the coming political, legal and constitutional fights over it must read the scathing dissents by Commissioners Rob McDowell and Meredith Baker.

Commissioner McDowell’s jeremiad about “one of the darkest days in recent FCC history” makes clear the utter impossibility of reaching a “compromise,” as Chairman Genachowski insists he wanted. Commissioner McDowell summarizes his dissent beautifully:

1. Nothing is broken in the Internet access market that needs fixing;
2. The FCC does not have the legal authority to issue these rules;
3. The proposed rules are likely to cause irreparable harm; and
4. Existing law and Internet governance structures provide  ample consumer protection in the event a systemic market failure occurs.

The dissent runs just over 9 pages, but he includes a long appendix of his legal analysis. Here are Commissioner Baker’s key points:

1. The importance of regulatory certainty
2. There is no factual basis to support government intervention
3. Consumers will not benefit from net neutrality
4. The order may inhibit the development of tomorrow’s internet
5. The Commission is miscast as the internet’s referee
6. The Commission lacks authority to adopt net neutrality rules
7. The Commission acts improperly as a quasi-legislative body
8. The Commission has strayed from a pro-jobs consensus agenda.

Also check out statements from Chairman Genachowski, Commissioner Copps and Commissioner Clyburn. In the end, as Adam Thierer and I have warned, the FCC is heading down path towards “mutually assured destruction,” opening the door to endless regulatory battles among the Internet’s many players.

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