The announcement by FCC Chairman Genachowski of his intention to have the agency codify, and add to, its "Internet policy principles" overshadowed an equally interesting event in the net neutrality saga: the filing of FCC's Brief with the D.C. Circuit defending the actions taken in its 2008 Comcast P2P Order. The timing of these events seems to have raised some eyebrows, since it appears the agency is saying they were correct in enforcing the policy principles while, at the same time, attempting to codify the principles into enforceable rules. This, combined with Congress jumping into the fray with proposals to grant the agency power to enforce network neutrality, paints a most confusing picture of exactly what the FCC's jurisdiction is over the Internet.
These events did not go unnoticed by Barbara Esbin, who released a short paper this week analyzing the evidence the agency presented in support of its Comcast P2P Order. In "The Audacity to Hope Regulatory Restraint Will Prevail," Barbara discusses the FCC's reliance on "ancillary jurisdiction." Regarding the Brief's discussion of Section 230 of the Communications Act, Barbara wrote:
Section 230 creates protection for "Good Samaritan" blocking and screening of offensive material by interactive computer service users and providers and imposes notice obligations on providers of interactive computer services. In the Comcast P2P Order, the FCC prohibited Comcast's alleged blocking of certain Internet traffic. The Brief attempts to gloss over the obvious contradiction between the operative provisions of section 230, the clear policy statement supporting an unregulated Internet, and its action against Comcast by acknowledging that "Section 230(b) states several potentially conflicting policies, which the Commission has assessed and balanced." The Brief asserts that section 230 as a whole represents "delegated authority to the FCC [to regulate network management practices of ISPs] in the form of broad policy outlines rather than easily outdated commands." While it is conceivable that a court less versed in the FCC's history of creative statutory interpretation might be willing to accept this birds-eye view of things, the D.C. Circuit has been more searching, especially of late, in its review of ancillary jurisdiction claims, and it just doesn't strike me that this claim will fly.
What is one to make of all this? The FCC seems a bit conflicted about its regulatory authority over ISPs and the Internet generally, and appears to want the courts to answer the question once and for all. As I have said, this is a bet the farm tactic, and it does not seem likely to succeed. The timing of the net neutrality rulemaking is therefore curious, to say the least. In any event, it will permit the FCC to attempt to support the empirical case that net neutrality regulation is needed to protect the open and free nature of the Internet and to test theories of its jurisdiction other than those articulated in the Comcast P2P Order. Although I remain highly doubtful that the Communications Act today reflects the intent of Congress that the FCC may or must regulate the Internet in order to protect it, the lawfulness of an exercise of ancillary jurisdiction involves a fact-specific inquiry, rendering predictions of success or failure speculative.
Barbara has produced an extensive body of work analyzing the Comcast P2P order and questions about FCC jurisdiction, including short papers here and here, a law review article and an amicus brief in the pending case in the D.C. Circuit Court. "The Audacity to Hope Regulatory Restraint Will Prevail" can be read in its entirety here.