-By Scott Cleland
At core the FCC’s contemplation of reclassifying, or effectively treating, unregulated broadband info services as regulated telecom services, would be tantamount to the FCC declaring “eminent domain” over private broadband providers, i.e. justifying a government takings of private property for public uses, but doing so “without just compensation” or any statutory authority.
The U.S. Constitution’s Fifth Amendment requires: “nor shall private property be taken for public use, without just compensation.”
A gaping missing element in all the FCC’s discussions of all the new “public uses” it envisions for broadband in its pending National Broadband Plan and its proposed preemptive Open Internet regulations is any consideration at all of the potential hundreds of billions of dollars of un-budgeted liability to the U.S. Treasury that could result from the takings of private network property without just compensation — at a time of skyrocketing trillion dollar Federal budget deficits and rapidly mounting public debt.
The FCC appears to be operating under the sweeping and heroic presumption that any prospective FCC regulatory action it may take here is essentially cost-free to the U.S. taxpayer and will be completely shouldered by broadband shareholders; in other words, the Fifth Amendment appears to be irrelevant to FCC decisionmaking.
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FCC Reclassification is Eminent Domain, but with No Just Compensation or Authority”