It's not often that the cable industry can count on help from Lawrence Lessig regarding "network neutrality" -- the question of whether cable modem and other broadband service providers should permit Internet users to access the content, applications and devices of their choice. And yet, Lessig appears to have conceded an argument on which cable may rely to resist regulation if the FCC wins the Brand X case in the Supreme Court. That case ultimately will decide whether the agency can classify cable modem service as a largely unregulated "information service" under the Communications Act. Lessig's concession, however, may not be enough to keep the FCC from enforcing net neutrality even if the Court hands the agency a victory.
In the May 2005 issue of Wired [subscription required], Lessig praises the FCC for taking quick action against DSL provider Madison River, which agreed to stop blocking its customers' use of Vonage's Internet voice service in order to fend off agency investigators. Lessig argues that "the nondiscrimination principle in telecommunications law that [former FCC Chairman] Powell acted upon applies to telcos, not cable companies. Had Madison River been Madison Cable, Powell's pistol would never have left its holster."
Perhaps. Even those of us who fear net neutrality mandates would chill broadband investment recognize that the strongest basis for imposing such mandates would be to regulate cable modem service as a "telecommunications service." That approach would subject cable to the same duty to serve all comers equally by which telephone companies are currently bound. And that likely would preclude cable modem providers from "discriminating" against particular content, applications or device providers.
Where Lessig arguably does cable a favor is in suggesting that the FCC has no authority to enforce net neutrality if the Supremes allow the FCC to classify cable modem service as an "information service." Although the FCC generally has not imposed regulations on this category of service (which includes most Internet applications), the agency retains limited power to regulate these services if necessary to promote the Act's goals. For example, the Act requires the FCC to speed roll-out of broadband. The FCC could argue that goal would be furthered by ensuring that consumers can access the content, applications and devices of their choice when they ditch dial-up for more expensive broadband Internet connections. Indeed, the agency signaled that it could regulate information services, as a general matter, when it sought comment on what rules might apply to cable modem service after declaring it an information service.
To the extent Lessig is merely suggesting that these arguments involve legal risks, I agree. Increasingly, appeals courts have insisted that the FCC point to specific language in the Act before allowing the agency to extend regulation to types of companies that ordinarily would not be subject to such rules. In response to strong support of net neutrality by Lessig and others, however, the FCC could attempt to impose net neutrality mandates to win in the court of public opinion, while taking its chances in the courts of law.
Thus, even if Lessig does cable a "favor" by casting doubt on the FCC's authority to enforce net neutrality in certain circumstances, it is a small one. When it comes to popular fears (however unfounded) that communications companies will harm consumers, the FCC can wield its regulatory "pistol" to great effect. And only later will courts have a chance to say the agency never should have fired a shot.