Monday, September 26, 2005 - The Progress & Freedom Foundation Blog

Jurisdictional Question-Begging and Future Fights

The FCC just released the Policy Statement it adopted on August 5 that sets forth the four Net Neutrality principles that the agency says it will incorporate into ongoing policymaking activities. Here it is.

Not to be a spoilsport, but here is what makes the FCC's action problematic, perhaps especially legally, when it goes to apply the principles. The Policy Statement says: "[T]he Commission has jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner." In Brand X, it was the Commission's position, affirmed by the Supreme Court with a heavy dose of deference, that "providers of telecommunications for Internet access" are, in fact, "information service" providers, and that the telecommunications and information services components of a broadband offering are so integrated that they cannot be separated for purposes of determining what constitutes the "offering". Justice Scalia, in dissent, ridiculed this view, finding two separable "offerings", telecommunications and information services.

In order to actually enforce the NN principles, the Commission must find its power to do so under Title I's "ancillary" jurisdiction principles. "Ancillary" juridiction has to be tied to a separate regulatory purpose over which the agency definitely has jurisdiction under the Communications Act. Because the agency has jurisction over "telecommunications", that is presumably why the Commission now prefers to charaterize broadband information service providers as "providers of telecommunications for Internet access".

It is possible--but probably not likely--that a court will never have to rule on the FCC's ancillary jurisdiction to enforce the NN principles in a specific policymaking context. But if one does because an information services provider resists the agency's assertion of jurisdiction, we'll all be right back in the thick of a metaphysical food fight in which the way a word is uded or a phrase is turned will matter much more than marketplace realities.

BTW, isn't the admonition that these whatever-they-are and however-they-are-charaterized broadband services must be operated in a "neutral" manner a bit chilling in cold, hard print. I predict that what is "neutral" or not will be the source of much good litigation as well as service providers try to differentiate their offerings in an incresingly competitive marketplace.

posted by Randolph May @ 12:05 PM |