In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).
Peggy Noonan recently suggested that “elites are often the last to see their system is under siege. ‘It couldn’t be, I’ve done so well.’” There is much to this idea, especially in a nation like America where many are, in fact, doing very well, and are often socially isolated from others who are not doing so well. Near zero interest rates have flooded the stock market with money, and that, among other things, has been good for the wealthy. Outside of that, however, things are tougher, and not only economically. Because Americans are increasingly isolated socially and economically, our governing class often has trouble seeing this reality.
Our system was supposed to be designed to ensure regular contact between elites and the common citizen.
Last week, FCC Chairman Tom Wheeler announced a plan to extend federal subsidies for low-income Americans from landline and mobile phone services to broadband. The Internet is so cool, the FCC wants to a) regulate it under Title II of the ancient (1934) Telecommunications Act and b) make sure everyone has access to whatever is left of the Net once the agency is through with it. Republicans in Congress are moping that the FCC has horridly mismanaged even the existing subsidy program (called “Lifeline”), so they’re reluctant to support the broadband extension. There’ll be hearings.
In an earlier post I commented on President Obama’s success in bulldozing the Federal Communications Commission (FCC) into regulating the Internet as a public utility. GOP legislators have since vowed to look into the matter; among other things they’ve asked the FCC to turn over all correspondence with the White House, to learn whether there has been any “illegal coordination” between the President’s flacks and the “independent” FCC. This strikes me as a rather pathetic response and an unhelpful distraction.
This past week brought more news of wholesale public corruption. Jaw-dropping except that it’s becoming routine, and we are becoming inured.
Standard & Poor’s paid a $1.5 billion settlement ($125 to Calpers, with the remainder split between the feds and the states) over its alleged manipulation of ratings of mortgage-backed securities back in 2004-2007. If the allegations are true, $1.5 billion is a pittance to pay for the wreckage wrought in the mortgage meltdown; once again, a company got off cheap because it’s too big to jail.
Modern liberal democracies are awash in rights, enforced by powerful (constitutional) courts. Paradoxically, though, it’s an open and serious question whether constitutional structure still constrains nominally democratic but poorly monitored institutions and whether courts can still enforce the groundrules of liberal, democratic politics. NFIB v. Sebelius raised that central question in one form. The ESM/Fiscal Pact case(earlier post here) pending before Germany’s Bundesverfassungsgericht (“FCC”) raises it in a somewhat different form: does the German Constitution pose any limit to the political branches’ power to delegate authority to the European Union and its various institutions? That is the central question of German politics and of European politics: barring further German transfers of money and authority, the Euro will fall apart. Hence, all eyes in Europe are on the FCC.