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HARPER: Misguided study highlights ‘fourth branch’ overreach

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The Federal Communications Commission — part of what some consider the "fourth branch" of government — reared its head recently with an ill-conceived and ill-advised plan to question journalists about how they report the news.

Fortunately, that plan, which faced an outcry from news organizations and even one of the FCC commissioners, was shut down Friday.

But the audacity of the FCC even to contemplate such a study underscores the power of that fourth branch, which includes a multitude of independent agencies such as the Environmental Protection Agency and the Securities and Exchange Commission. Not surprisingly, the FCC plans to exercise its expansive power over the Internet.

The commission began in 1934 with essentially one goal: to make certain radio signals did not interfere with one another. Now the agency's nearly 2,000 employees, including the five commissioners, involve themselves in regulating broadcast radio and television, cable television, satellite transmissions, wireless communication and some aspects of the Internet.

Moreover, the independent agency — like others in the federal government — has the power to promulgate rules and regulations as a legislative entity, enforce those standards as a judicial monitor and act as administrator of licenses for broadcast outlets in an executive capacity. Simply put, Congress has created these independent agencies to wield executive, legislative and judicial powers. (See

In recent years, the FCC has launched an effort to regulate the Internet under a policy known as Net neutrality or Internet openness. The FCC created regulations meant to force Internet service providers and broadband outlets to charge the same rates for all customers who get similar services without any difference in download speeds. The FCC's intention was to prevent Internet providers from being able to discriminate against large users and competitors, or to favor some Web companies over others, but the U.S. Court of Appeals for the District of Columbia determined recently that the agency had written flawed regulations.

Generally speaking, consumer groups support Net neutrality while ISPs and content providers support a structured pricing system.

Since President Obama and FCC Chairman Thomas Wheeler both wanted the FCC to have more power over the Internet, the decision seemed like a significant defeat.

Nevertheless, a longtime analyst of the FCC, Marguerite Reardon of CNET, disagrees.

"While the court deemed that the FCC's Open Internet rules were based on faulty logic, it gave the agency a blueprint to revise its argument so that the rules would stick. More importantly, the court sided with the FCC over the argument of whether the agency even has the authority from Congress to regulate the Internet. On that question, the FCC won. And it won big," she writes.

What does this mean for consumers? It means the likelihood of more government involvement in a variety of communications sectors, including the Internet. While that may sound like a good idea, it may not be.

As Senior Circuit Judge Laurence Silberman puts it in his partial dissent from the U.S. Court of Appeals' decision, the FCC could extend its power despite the commissioners' claims that the agency would not. "An unwarranted government interference in a functioning market is likely to persist indefinitely," he wrote, giving the "FCC virtually unlimited power to regulate the Internet."

Whatever the case, the fundamental question is whether the country should embrace more government involvement from independent agencies like the FCC rather than allowing the free market to work its way to provide services for communications like the Internet — a market that has expanded relatively efficiently without any significant U.S. government intervention.

Christopher Harper is a professor at Temple University. He worked for more than 20 years at The Associated Press, Newsweek, ABC News and "20/20." He can be contacted at Twitter: @charper51.

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