Friday, September 11, 2009 - The Progress & Freedom Foundation Blog

Green Shoots at the FCC

It has been quite a while since the Federal Communications Commission exercised what I would call "regulatory humility" concerning the limits of its statutory authority. That is why it is so refreshing to see some "green shoots" signifying a more "law-based" approach to its mission recently. I refer to the FCC Public Safety and Homeland Security Bureau's September 8th release of a report entitled, FCC Preparedness for Major Public Emergencies. The report was the result of a 30-day, top-to-bottom state-of-readiness review launched by FCC Chairman Genachowski as one of his first actions at the agency.

According to PSHS Bureau Chief Rear Admiral (ret) Jamie Barnett, "Our number one priority is making sure that the FCC has the capability to respond immediately to disaster or emergency," and the report outlines various programs in place, steps the FCC has taken, as well as those it should take, to help prevent communications failures in large-scale emergencies. Chief among the existing programs is the "Network Outage Reporting System (NORS)" contained in Part 4 of the FCC's Rules. Part 4 currently requires communications providers, including wireline, wireless, paging, cable, satellite, and Signaling System 7 providers, to report communications disruptions to two-way voice and/or data communications that meet certain thresholds. The rules apply according to regulatory classifications largely developed for the world of narrowband analog wire and radio communications.

The migration of communications networks and services to broadband digital platforms has invariably led to significant definitional and jurisdictional problems for the FCC. As the Preparedness Report notes, "today, the FCC does not require ISPs to file outage information akin to that received from traditional communications providers under the Part 4 rules."

The FCC has authority to regulate entities that provide communications services via the Internet, and that authority might include the regulation of the underlying infrastructure used to provide those services. If an IP-based service is a "telecommunications service" within the meaning of 47 U.S.C. § 153(46), the FCC has authority to regulate a provider of that service under Title II of the Communications Act. If an IP-based service is an "information service" within the meaning of 47 U.S.C. § 153(20), the FCC may have authority to regulate a provider of that service pursuant to Title I ancillary jurisdiction. However, the FCC's Title I ancillary jurisdiction is not limitless and the extent of the FCC's authority to regulate information services pursuant to Title I ancillary jurisdiction has not been defined clearly.

Among the "Recommendations for Improvement" is consideration of an expansion of the NORS program.

The FCC could consider expansion of Part 4 Outage Reporting Rules to include broadband ISPs. PSHSB notes that this would require consideration of the extent to which the FCC has jurisdiction to regulate the network management practices of ISPs and other "information service providers," including the filing of reports.

Over the past year, I have written extensively about the limited scope of the FCC's Title I ancillary jurisdiction in an essay, a law review article and, together with Professors James B. Speta and Glen O. Robinson, in an amicus curiae brief filed with the D.C. Circuit Court of Appeals in support of Comcast's appeal of the FCC's 2008 Comcast P2P Order. The extent of the FCC's ancillary jurisdiction to regulate the network management practices of ISPs and other information service providers --first identified as an area of concern in its 2005 Internet Policy Statement--lies at the heart of the decision on review. In light of a recent report by The Hill that Chairman Genachowski said that if the FCC determined that it lacked jurisdiction to enforce its Internet Policy Statement he would say so, I suggested that the FCC would do well to drop its defense of the Comcast P2P Order and initiate a serious inquiry into its jurisdiction over the Internet and Internet services.

The Preparedness Report is the first indication--a green shoot, if you will--that the new FCC may not be afraid to call a spade a spade, and admit that its statutory authority may not permit it to regulate the network management practices of ISPs and other information service providers pursuant to its Title I ancillary jurisdiction. This is a welcome departure from past practice, and the PSHS Bureau and Chairman deserve credit for the Report's candor. In view of this, it will be very interesting to see the FCC's Brief in support of the Comcast P2P Order, due to be filed in the D.C. Circuit on September 21st. At that point, it should become more obvious if the Preparedness Report's language was indeed a green shoot, or a merely a false spring.

posted by Barbara Esbin @ 11:01 AM | Communications , The FCC