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Authority Bounded Only By Imagination


The House Subcommittee on Communications and Technology convened hearings today on the FCC’s “Net Neutrality” power grab, with all five FCC commissioners scheduled to testify.  In his opening remarks, Subcommittee Chairman Greg Walden said “it’s important to realize that the FCC’s underlying theory of authority would allow the commission to regulate any interstate communication service on barely more than a whim and without any additional input from Congress… Under the FCC’s rationale its authority is bounded only by its imagination.”

Walden has put his finger on one of the greatest flaws in the theory of activist government.  It’s the same conceptual taffy pull that has stretched the Commerce Clause into a mandate for unlimited power.  If the FCC has an absolute mandate to “encourage broadband deployment,” and it can do anything it sees fit to advance that goal, where are the limits to its authority?

Walden pointed to the example of former FCC chairman Kevin Martin.  In the wake of Hurricane Katrina, Martin “claimed that his authority over wireless services allowed him to require backup power at cell sites.”  When he was asked if this line of reasoning would ultimate grant him “endless authority over things like electric utilities and employees of wireless providers,” he backed down.

When the authority of a bureaucracy is bounded only by its imagination, we swiftly discover that government agencies have extremely vivid imaginations.  Walden explained in his opening remarks that the case for Net Neutrality hangs largely on a problem with peer-to-peer network management that Internet providers resolved on their own, without regulatory oversight.  Almost everything else the order discusses “is either an unsubstantiated allegation or speculation of future harm.”  The FCC is demanding a permanent loss of liberty to deal with problems it fantasizes might occur in the future.

In his own remarks, House Energy and Commerce Committee chairman Fred Upton noted that “The FCC has done nothing to specifically quantify any harm requiring intervention, or the potential harm to consumers, innovation, or the economy from the proposed rules. Where is the cost-benefit analysis that President Obama called for in his recent executive order?”  I would imagine it was buried in the same circular file as the cost-benefit analysis of destroying the offshore drilling industry, because thousands of American jobs are a small price to pay for something bad that might happen someday, if another careless corporation slips past an incompetent oversight agency.

If we put Walden, the supercomputer currently beating the pants off top human players on “Jeopardy,” and gave it a mandate to maximize human safety at all costs, it would probably conclude the optimum approach is to turn the human race into house pets.  Feeding absolute mandates into government bureaucracies drives them batty faster than a computer forced to argue with Captain Kirk.  FCC commissioners should be obedient to the free people who employ them, and we are not interested in their nightmares.