There's no such thing as hospice for federal bureaucracies. No quiet corner where bureaus who have outlived their usefulness can go to bravely face the end. The undead need no such niceties; not when they can leap vampire-like upon the next great sector of American life and proceed to suck it dry in the name of "public interest", "fair play", or any other euphemistic glamour the Executive and Legislative branches can be lulled into.
This may sound like a Halloween tale, but the FCC's Christmas Week takeover of the Internet is the best example of President Reagan's maxim that the nearest thing to eternal life on Earth is a federal program.
Just four days before Christmas, the FCC will make its vampric leap from its traditional jurisdiction- the terrestrial radio and land line telephones that have fallen into disuse; onto the gifts piled neatly under our trees. The iPads and iPhones, Androids, Wiis, Webbooks, and WiFi will all feel the federal bite in a way they never have before.
Today the FCC, in spite of Congressional opposition and public outrage, is expected to adopt "net neutrality" regulations over the Internet. They will impose thousands of pages of rules on the most prosperous, creative, and exciting sector of the American economy. They'll do it- and then Congress will have to undo it.
The FCC's blind impulse to regulate before the new Congress can restrain them ignores a host of consequences that will prove ill for America's Creative Economy. First, in detaching the Internet Service Providers (ISPs) from the Internet architecture they have built, the FCC is effectively nationalizing the web. The FCC does this in the name of "fairness", "non-discrimination", and "leveling the playing field". The consequence will be a restriction of bandwidth for users and a deterioration of the online architecture that ISPs no longer have an interest in expanding or maintaining. The underserved communities in this country who don't yet have access to broadband are now much less likely to get it.
Second, the FCC's hysterical reaction to the hypothetical problem of anti-competitive online behavior is also redundant. By asserting jurisdiction over the Internet as a communications platform, the FCC is shortsightedly ignoring the Federal Trade Commission (FTC) who already has sufficient rules in place to contain the bad behavior in the virtual marketplace the FCC seems so worried about. This sets up a real jurisdictional fight and points out what happens when the bureaucracy decides to create work for themselves, rather than wait for Congress to dictate to them.
Finally, when the FCC moves to regulate the Internet, they focus on those issues they understand: bandwidth, spectrum, and to a lesser extent content. They ignore emerging issues of fair trade, property rights, privacy, and copyright. In my view a more comprehensive approach to the new Creative Economy and how it can be protected is the most appropriate. Such a comprehensive approach can only begin on Capitol Hill.
The real issue here is not that the Federal Government lacks the authority to sensibly regulate the Internet. Nor, even, that the Internet is in desperate need of regulation- it isn't. The issue is that the FCC is running out of useful things to occupy their time. There is a real bi-partisan consensus that Congress should act first to regulate the Internet (or not regulate as the case may be). Industry and creative content providers who were coerced into this deal by an over zealous FCC Chairman should take heart. Like the breaking of dawn, the new Congress will prove a swift antidote to the federal bloodsucker you found at your throat this Christmas.