Authority in the Internet Age

Yesterday, the D.C. Circuit Court dropped a major decision that calls into question the Federal Communications Commission's jurisdiction over the Internet. The case in question had to do with the FCC's 2008 reprimand of Comcast when the cable company throttled its customers' use of the peer-to-peer file-sharing software BitTorrent.

What the court rejected was the argument that the FCC has the power to regulate the networks that together make up the Internet under what's called "ancillary authority" extrapolated from the powers expressly granted to the FCC by Congress.

The decision introduces an element of major uncertainty when it comes to everything from the FCC's promotion of net neutrality to the future of its recently announced National Broadband Plan. Frankly, it's a bad result for anyone interested in a well-regulated communications landscape that isn't simply the playground of the telecom giants.

That said, there's a silver lining. The D.C. Circuit Court's decision in favor of Comcast is a push to update the FCC's authority for the Internet age.

Yesterday's decision isn't an unexpected one, especially not after the Supreme Court's ruling in the 2005 case National Cable and Telecommunications Association v. Brand X backed up the FCC's decision three years prior to end the practice of treating cable networks as "communication services." Writing the majority opinion, Justice Clarence Thomas argued that the Federal Communications Commission was well within its mandate and that the proper function of the FCC is as the "authoritative interpreter" in the technical, complex, and evolving area of broadband Internet policy. In the dissent, Justice Antonin Scalia called the commission's decision to treat cable-based Internet as information services -- more medium than conduit -- as the introduction of "a whole new regime of nonregulation." That, of course, was largely the Bush-era FCC's intention.

This being 2010 and all, the sticky part here is that an FCC that loses jurisdiction over information services -- at the very same moment the country is itself turning to not only the Web but Voice-Over-IP and online TV -- is quickly becoming a worthless entity. It's a regulator with one arm tied behind its back, if not one arm, a leg, and perhaps a piece of duct tape over an eye. That makes yesterday's D.C. Circuit Court decision a thrilling outcome for those who want to see a withered Federal Communications Commission. That includes not only free-market purists and the telecom giants like Comcast and AT&T but also Glenn Beck, who has recently found a new calling as an enemy of net-neutrality regulations.

Restricted by decisions made by earlier iterations of the commission, the FCC has of late been relying on extrapolated authority -- in other words, powers not enumerated in its statutory mandate. Critics have argued that they've stretched that mandate to the breaking point. And the fact is, frankly, as a technical matter when it comes to the Internet, there's something to the argument.

The FCC has indeed leaned pretty heavily in recent years on a rather ambiguous passage in the 1934 Communications Act. That's the bill that turned the Federal Radio Commission into the Federal Communications Commission. Section 4(i) grants the FCC the authority to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions." More simply put, Congress told the brand-new Federal Communications Commission that it had the authority to do what it has to do to do what it had been told to do, which was to regulate telecommunications. The D.C. Circuit Court largely put the kibosh on the reasoning that that passage gives the FCC the power to tell Comcast that it can't manhandle Internet traffic that runs across the networks it controls.

Susan Crawford is a Michigan Law professor and fierce advocate of net neutrality, who spent the first year of the Obama administration serving on the White House Economic Council, where she was said to have clashed with Larry Summers over her contention that the government has a strong role to play in shaping the telecommunications playing field. Even Crawford expresses some doubt about how strong a crutch "ancillary authority" is for the FCC.

After the decision was released yesterday, Crawford wrote a blog post that she titled "'Ancillary Jurisdiction' Has to be Ancillary to Something." The time's come, she argued, for federal regulators to come up with a better justification for why it has something to say about the networks that make up the Internet. "The next time the FCC wants to issue an Order or otherwise exercise power over high-speed Internet access providers," blogged Crawford, "it had better be very clear about the source of its power, and it can't rely on just its 'necessary and proper' clause in Title I."

The thing is, as a practical matter, it's somewhat absurd for the federal appointees charged with making telecommunications work to the benefit of the American people to not have some amount of oversight over the Internet. It's a hole that developed as the communications landscape has evolved. The D.C. Circuit Court decision exploits that hole, but someone was probably bound to do it soon enough. John McCain attempted it this fall with the Internet Freedom Act, his ridiculously cobbled-together legislative gift to the telecoms. But someone was going to do it in a less ham-handed fashion eventually.

Which brings us back to that silver lining, or at least the possibility of one for those who believe that the federal regulators should have oversight power on Internet without having to worry that their decisions are going to end up challenged in court every time. The D.C. Circuit Court's decision might spur a new regime -- one that equips the FCC with express authority to help to create a playing field that benefits the greatest number of Americans simply because it's a market that benefits from someone in government keeping an eye on things.

One route is statutory. That is, the FCC's mandate could be legally enlarged to explicitly cover more of the Internet. Of course, there's a group of people whose very job it is to provide statutory authority. It's called Congress. And with an Internet-friendly President in Barack Obama, a Democratic Congress with a sprinkling of savvy tech leaders like Ed Markey and John Kerry, and something of a rock star in FCC chair Julius Genachowski, today's Comcast decision could work out to be the impetus it takes for Congress to actually spell out the role of government regulators in the age of the Internet.

That said, some open Internet advocates are nervous that Congress is both too bound by telecom interests to advance a meaningful new mandate and frighteningly too eager to impose itself on the Internet.

Which, in the immediate aftermath of the D.C. Circuit Court decision, has some net-neutrality allies pushing the Obama FCC to reclaim the broadband authority the deregulation-happy Bush FCC gave away. Writing on the Huffington Post yesterday, Free Press executive director Josh Silver argued that Chair Genachowski had been "forced into a corner" by the ruling. "He will," wrote Silver, "have to either stand up to the big companies and do the right thing, or watch his legacy at the FCC wash down the drain."

Yesterday we suddenly found ourselves in a defining moment in the history of communications in the United States. The question will be who defines it.

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