FCC commissioner says FCC “invented” new authority to regulate Internet
FCC Commissioner Michael O'Rielly. — The FCC's Michael O'Rielly, one of two Republican commissioners since being sworn into office last November, today warned against the commission using what he called “newly invented authority to regulate the Internet.”
Context & Ripple Effects
The FCC enters May 2014 with its chairman publicly committed to issuing enforceable open Internet rules by year's end, built around a standard barring ISPs from acting in a "commercially unreasonable" manner — while reporting in late April alleged that key staffers drafting the rules previously represented Comcast and Verizon, feeding a legitimacy fight before any rule is even filed. Against that backdrop, Michael O'Rielly, sworn in last November as one of the commission's two Republicans, is drawing his line early: he argues whatever legal footing the new rules rest on amounts to "newly invented authority to regulate the Internet."
The complaint lands amid a broader credibility debate about the agency itself — the kind raised in the 2008 Reboot the FCC argument that the commission's structure and mandate fit the broadcast era more than the broadband one. It also extends beyond carriers: analysts have already argued that the pending rules could kill Aereo even if broadcasters lose at the Supreme Court, meaning the scope question touches video distribution as well as wireline access.
First-order effects
- The chairman's pledge of enforceable net neutrality rules by year's end now faces an internal commissioner prepared to contest their legal basis, setting up a likely party-line fight when the draft rules move forward.
- Aereo's fate is tied to this fight regardless of the Supreme Court outcome, since analysts say the new rules themselves could shut it down.
Second-order effects
- ISPs stand to gain from any ruling that the commission lacks authority, and the reported presence of former Comcast and Verizon attorneys among rule-drafting staff gives opponents both a substantive and a credibility attack.
- If the rules fall on jurisdictional grounds, pressure shifts to Congress to write broadband authority into statute — turning carrier compliance planning into legislative lobbying.
Third-order effects
- A pattern of asserting Internet authority case by case, without a settled statutory mandate, locks the agency into a litigation cycle where each rule set is challenged and overturned, leaving open-Internet policy permanently provisional.
- That cycle feeds the longer-running structural critique that the FCC needs reauthorization or redesign for a broadband era — the same territory the Reboot the FCC debate opened years ago.
The trend: US Internet regulation is being decided less by statute than by repeated contests over how much authority the FCC can credibly claim, with each rule set triggering the next legal challenge.