RUSH: I’ve never felt more surrounded by ignorance than I am. I don’t mean here. I’m talking about opinion leaders and CEOs, tech leaders, industry leaders. I have never seen such ignorance in my life. I don’t know how to deal with it. This net neutrality features almost as much ignorance as there was going into Obamacare, and to me there’s no excuse for the ignorance anymore.
We’ve got seven years, six and a half years now — let’s count the year of the campaign, make it seven years. Seven years, there is no excuse for not knowing who the man is leading the country. There’s no excuse for not getting it. There is no excuse for not being able to open your eyes and see what’s right in front of your face. And yet with every issue, with every issue that comes up, it’s like nobody’s learned anything. Or even worse, if they have learned it, they don’t care.
The government is taking more and more freedom and liberty away from individuals and organizations and groups than ever before. And they’re not even having to fight for it. In some cases they’re buying it, cronyism, socialism, capitalism. In some cases they’re buying it with welfare checks, but they’re buying it.
I have here in my formerly nicotine-stained fingers an op-ed piece at TheHill.com, of all places. It’s by Randolph J. May, who is a communications lawyer, and he has been a general counsel for the FCC, among other things. He cannot believe what he’s seeing.
“This Thursday, Feb. 26,” my father’s birthday, by the way, “will be a fateful day for the future of the Internet,” so begins his piece. “In the nearly 40 years that I have been involved in communications law and policy, including serving as the Federal Communications Commission’s (FCC) associate general counsel, this action, without a doubt, is one of the agency’s most misguided.”
He’s being polite when he calls it misguided. It’s not misguided. This is what I mean. They know exactly what they’re doing. They’re not bumbling fools here at the Regime. And why do people continue to afford them and extend to them that possibility. They’re not a bunch of bumbling fools. They’re not a bunch of misguided kids running around. These are people knowing full well what they’re doing. It’s exactly what they’ve intended to do. Bumbling around, it’s not misguided behavior going on here.
Anyway. “The sad reality is that,” he continues, “without any convincing evidence of market failure and consumer harm, the FCC is poised, on a 3-2 party-line vote, to expand its control over Internet providers in ways that threaten the Internet’s future growth and vibrancy.”
Well, so far, so good. Without any convincing evidence of market failure, the Internet is a shining example of entrepreneurism on the march. It’s a shining example of competition, technological advancement, my God, the things the Internet has made possible, no wonder the government wants control of it. No wonder the left wants control of it. People like it more than they like the government. People like the Internet more than they like Obama. Can’t have that.
“Here is the nub of the matter,” according to Randolph J. May. “By choosing to regulate Internet providers as old-fashioned public utilities in order to enforce ‘neutrality’ mandates, the commission will discourage private-sector investment and innovation for many years to come, if only as a result of the litigation that will be spawned and the uncertainty that will be created. And the new government mandates inevitably will lead to even more than the usual special interest pleading at the FCC, as Internet companies try to advantage themselves and disadvantage their competitors by seeking favored regulatory treatment.”
You know, it’s so simple. We’ve been down this road I don’t know how many times just most recently with Obamacare, and Obamacare is the model, by the way, for net neutrality. The Regime is using the exact same model.
“From all indications, the FCC contemplates that the new rules will be sufficiently burdensome and costly — and sufficiently ambiguous — that affected parties will be invited to seek exemptions from the new mandates through ‘waiver’ requests or other administrative mechanisms.”
So they’re gonna knowingly implement a bunch of arduous, complicated, punishing regulations, and then they’re gonna invite injured parties to come up and ask for exemptions or waivers. Knowingly this is going to happen. To the uninitiated who may be shouting, “Why, why?” Because this is how you get control. This is how, if you’re Obama and the government, you simply take control of the Internet and make it yours. And then you implement all of these burdensome regulations.
But, for most favored supporters you can get an exemption, but your competitors may not. How badly do you want to support the Regime? How badly and how loyally will you support the Democrat Party? “Oh, forever. Whatever you need.” Fine. You’ve got your waiver. But your competitor doesn’t. We’ll help you put your competitor out of business in exchange for your loyalty to the Democrat Party. And that’s how it’s gonna go.
That’s how it’s gone with Obamacare, and that’s exactly how this is imagined. We haven’t even gotten to the nature of the burdensome regulations, the punitive nature of them and how they’re gonna bottleneck the Internet, and how they’re gonna stifle innovation. And when he writes here, “The commission will discourage private-sector investment and innovation,” why would you invest in a company that’s gonna be more and more regulated by the government? Why would you invest in such a company when you can’t have any idea what’s gonna happen? The company’s fortunes are gonna be directly tied to the government’s opinion of it.
So you got a great company, company XYZ Widgets, and they manufacture products and services that enhance everybody’s usage of and enjoyment of the Internet, here come some new rules, gonna make it tougher for them to do business, tougher and tougher for them to do business. Their profit margins are gonna shrink. They may not be able to continue to do the business they’re in at the same costs. It may be tougher and tougher for outside investors to invest in the company to help it grow.
Add to that the company then may not be favored by the Regime, in which case it will not get exemptions from some of these punitive regulations. Therefore, why would anybody invest in a company like that? Now, multiply that times however many hundreds or thousands of companies that do business on the Internet. Wait ’til the day comes where you are forced to get a license for your website based on the content of your website.
Say the content of your website’s judged to be political. And the political content on your website is judged by the regulators to be an in-kind political donation to either a candidate or a party. You have to get a license to be able to do that, then you have to get an exemption from campaign finance laws. And all you’re doing is running a website exercising your First Amendment rights. But not anymore. No, no, no. Not anymore. Now you’re being studied. And what you say is going to be judged. Is it friendly or unfriendly to the powers that be at any given time?
And what are you gonna be made to pay to change an unfavorable relationship to a favorable one? This is Obamacare redone. This is Obamacare all over again, and yet the same people are falling for it hook, line, and sinker. And maybe not so much falling, you know what’s even worse than falling for it? What’s even worse is all of these companies seeing what’s coming and instead of trying to fight it, just considering it to be a fait accompli, the new way business is gonna be done on the Internet. No sense in fighting it. We can’t stop it. And they’re gonna start maneuvering now for most favored nations status with the regulators, with the government, or whatever, in which case the relationship the business has to the government is its number one concern, not its relationship with its customer base.
Does that sound like hospitals and doctors to you? You’re the patient. Where do you rank when it comes to the insurance company, the government, the provider, the hospital, where do you rank in all that? You’re not at the top of the list. And neither are these business owners gonna be.
“But this likely flood,” as I resume the piece now, “But this likely flood of waiver requests should raise serious questions concerning the lawfulness of the agency’s mode of operating. As Philip Hamburger discusses in his book, Is Administrative Law Unlawful?, one of our Founders’ objectives was to control, if not eliminate, what in England was known as the ‘dispensing’ power. Simply put, the dispensing power — which is much discussed in English constitutional history — was a form of exercise of royal prerogative under which the king could excuse himself or his favored subjects from complying with particular laws enacted by Parliament. As Hamburger explains, today’s administrative agencies, in essence, have resurrected the dispensing power by the way they so often use waivers to grant favored treatment.
“Here is the way Hamburger puts it: After administrators adopt a burdensome rule, they sometimes write letters to favored persons telling them that, notwithstanding the rule, they need not comply. In other words, the return of extralegal legislation has been accompanied by the return of the dispensing power, this time under the rubric of ‘waivers.’ Like dispensations, waivers go far beyond the usual administrative usurpation of legislative or judicial power, for they do not involve lawmaking or adjudication, let alone executive force. On the contrary, they are a fourth power — one carefully not recognized by the Constitution.”
So a way of translating this for you, the dispensing power is a way around Constitution. You write burdensome regulations over an industry or an entity that heretofore is free and unfettered. These burdensome regulations cause angst and hardship for some. Some of them are your friends, but you get hold of your friends and say, “Don’t worry, don’t worry, this for everybody else but you are gonna get a waiver. Apply here.” This is how it happens.
Now, in exchange for this waiver, you’re gonna be loyal to me, and whatever I need from you from here on out. We don’t need Congress to get involved. These waivers are not gonna be debated by the representatives of the people. These waivers are gonna be handed out from on high using power not vested in the Constitution, but nobody’s gonna stop us because they haven’t stopped us up ’til now.
Now, Comcast happens to be very, very, very tight with Obama. And I just want some of you out there who think that net neutrality is gonna make sure Comcast is made to deliver Netflix with no buffering at 200 megabytes down for eight bucks a month — he-he-he-he-he. Right.
“As the agency gains even more control over various participants in the Internet marketplace, pressures will increase for it to use its dispensing power to grant this or that company (or particular market segment) favored treatment. The commission already has announced it will adopt a so-called ‘good conduct’ rule to assess Internet providers’ practices. Under such an inherently vague standard, the agency necessarily will be granting dispensations to some firms and not others based on the exercise of discretion untethered to any intelligible standard in any law enacted by Congress.”
This is unrivaled power that Obama is demanding via the FCC and the Federal Election Commission, by the way. They’re part of this. So your good behavior as an Internet entity is gonna be under the microscope. They know that they’re going to enact burdensome regulations. They’re doing it on purpose to get concessions of loyalty. They’re happily going to grant waivers. The waivers are not an admission they’ve overreached, just like they weren’t in Obamacare. Many people looked at the waivers, “Man, don’t they understand what they’ve done? Look at all the waivers they have to give, otherwise –” it’s on purpose.
The purpose of the waiver is not to fix a mistake in the law. The purpose of a waiver is not to correct something that somebody got wrong when they put it all together. The purpose of the waiver or the dispensation is to grant most favored status. It is an unrivaled power. Your business depends on certain circumstances existing on the Internet. The new regulations make those circumstances impossible. But, you can get a waiver from those new regulations if you do X, Y, and Z. And it’s up to the grantors of the waiver to determine what you have to do, and you’ll do it, especially if your competitors aren’t granted the waiver.
Remember the story about why in the world did Walmart, of all people, support the Regime on Obamacare? Why did Walmart support the Regime on raising the minimum wage? Because that was the fastest way to hurt Costco. The power of the government helping you and not helping your competitor. And that’s what’s shaping up here.