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As Big As Net Neutrality? FCC Kills State-Imposed Internet Monopolies
tedlistens writes: On Thursday, before it voted in favor of "net neutrality," the Federal Communications Commission voted 3-2 to override state laws in Tennessee and North Carolina that have barred local governments and public utilities from offering broadband outside the areas where they have traditionally sold electricity. Christopher Mitchell of the Institute for Local Self-Reliance said the move was as important for internet competition as net neutrality: "Preventing big Internet Service Providers from unfairly discriminating against content online is a victory, but allowing communities to be the owners and stewards of their own broadband networks is a watershed moment that will serve as a check against the worst abuses of the cable monopoly for decades to come." The laws, like those in over a dozen other states, are often created under pressure from large private Internet providers like Comcast and Verizon, who consequently control monopolies or duopolies over high-speed internet in these places.
Yeah -- subpar. Every time I ask FedEx or UPS to mail a letter for me for less than 50c, they laugh.
What changed under Obama? Nothing Good
Given the 8-1 decision in Nixon v. Missouri Municipal League in 2004, it's essentially certain that this FCC action will be overturned by the courts. The FCC doesn't have a legal leg to stand on.
In that case, the Supreme Court ruled that federal law did not and could not preempt a Missouri state law that prohibited municipalities from providing Internet service. Of the eight-member majority in that case, five (Kennedy, Ginsburg, Breyer, Scalia, and Thomas) are still on the court.
once again: you are wrong about independent agencies.
we've been through this at least a dozen times.
Congress absolutely has the power the to delegate, the same as the President does.
Just as no one could ever reasonably the President to personally oversee the enforcement of the entire body of law without delegation, no one could ever expect the Congress, 535 people, to personally be experts at every single topic and perform all necessary oversight. It take an entire agency to keep an eye on Wall Street, the SEC. It takes an entire agency to study the environment we live in and forge compromises between the needs of the public and the needs of industry, the EPA. I could run through the entire list, but there should be no need.
The only people who argue the point are unreasonable people who think a return to the agrarian society run by educated scholarly farmers envisioned by Jefferson is still a real possibility, ignoring all else that has happened in the past 200 years. The Constitution doesn't explicitly state that Congress can delegate, but it doesnt explicitily state a lot of things that we take for granted. The Founders were a lot of things, and varied a lot in ideology and opinion on strong or weak the government should be. But one thing they were not was stupid. And the idea that they expected us to adhere to the document like a holy writ verbatim for eternity was not part of the plan, as evidenced by the many clauses and phrases that are vague generalities and obviously exist solely for the purpose of expanding on the parts that are spelled out.
Parts like (and this is not an exhaustive list) the 9th Amendment, the process for amending the document, and most relevant to this topic, the Necessary and Proper Clause, also known as the "basket clause". Article 1, Section 8, Clause 18:
p>The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
IE, whatever it takes to run the country and enact the peoples will, they can do. Case closed.
And there was a case, and it wasn't recent. McCulloch v Maryland, in 1819, a time when many of the Founders were themselves still alive, if not for much longer. And in that case the Courts established quite clearly that:
"First, the Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government. Second, state action may not impede valid constitutional exercises of power by the Federal government."
as indeed it must. Explicit powers are no good if they cannot be implemented due to the technicality that the prerequisites were not also explicitly stated. Again: the Founders were not stupid, but to take the opposite interpretation, an interpretation you seem to believe, is to imply that the Founders were in fact stupid.
The guy who said the election was rigged won the presidency with the second-most votes.
Even if it is interstate commerce, the constitution says congress has the power to regulate it not some extra legislative commit or department. It doesn't resolve the need for an act of congress to create the regulation or even pass the standards for the regulation to a department created for that reason. And there lays the problem, the FCC has openly and often admitted that congress never intended the FCC to regulate the internet in the ways it is trying to do. Congress has never given the FCC the power to create laws or rules for existing laws that would allow this to survive a constitutional challenge in court.