My latest contribution to the ever-expanding network neutrality literature are comments filed in the Federal Communications Commission's Network Neutrality rulemaking proceeding. My comments demonstrate that adoption of the network neutrality rules proposed in the NPRM would be unlawful because Congress did not give the Federal Communications Commission authority to protect Internet "openness."
The NPRM, incorporating by reference the jurisdictional theory stated in the Commission's 2008 Comcast P2P Order, asserts that the Commission has ancillary authority to prescribe rules principally under two statutory provisions: to implement the "federal Internet policy" contained in section 230(b) of the Telecommunications Act of 1996 and to achieve the statutory goal of encouraging broadband deployment pursuant to section 706(a) of the Act. It also appears to rely, at least to some extent, on sections 1, 201(b), and 257, and more broadly on whole titles of the Act - II, III, and VI. My comments examine the Commissions' jurisdictional theory in great detail, and conclude that there is simply "no jurisdictional 'there' there." None of these provisions, taken singly or together, provide a legal basis for the Commission to regulate the provision of Internet services.
The exercise itself--searching for snippets and threads of regulatory authority over a communications medium as significant as the Internet in multiple, unrelated statutory provisions--should signal to the Commission that no credible source of authority to regulate Internet services exists. The Internet, as the NPRM acknowledges, is widely considered to be one of the most important platforms for communications, entertainment, freedom of speech and of the press, and civic engagement. Had Congress intended the FCC to regulate the provision of Internet services, it surely would have said so directly, and not hidden that authorization in a disparate collection of unrelated statutory policy pronouncements, preambles, and provisions. Congress does not, to paraphrase the Supreme Court, hide elephants in mouse holes.
The Communications Act simply does not grant to the FCC general regulatory authority over the Internet, consistent with affirmative Congressional desire to keep it unregulated. And the Internet has flourished immensely under this framework. The NPRM abandons this wise policy course by proposing extensive regulation of Internet services pursuant to the very same statutory provisions and policies cited in support of its earlier de-regulatory moves. This strongly suggests that the proposed rules contravene both Congressional intent and the agency's own settled understandings of that intent.
The proposed network neutrality rules are premised on the view that Congress delegated to the FCC very broad authority to regulate any form of wire or radio communications in its sole discretion, including the Internet. My comments argue that Congress did not delegate to the FCC regulatory authority over the Internet or anything else for that matter solely in the form of "broad policy outlines." If it had, the Act would be very short, consisting perhaps of no more than a few provisions currently contained in Title I. The rest would be no more than surplus usage as the FCC would have a roving commission simply to "go and do good" without any statutory limitations whatsoever. No administrative agency operates under so broad a delegation of authority from Congress, and there is nothing in the Communications Act to suggest that the FCC is the exception.
Nor may the Commission support its proposed rules on the theory that the Commission has ancillary jurisdiction broadly based on entire Titles of the Act - II, III, and VI--simply because services provided over the Internet may affect aspects of federally regulated communications. For one thing, the obverse is no doubt true as well. Yet neither observation alters the commands of the Communications Act, and the Act neither directs nor permits the FCC to regulate the Internet simply because services provided over it affect nearly all aspects of federally regulated communications. This "everything-affects-everything" approach to FCC jurisdiction is simply untenable. By having to reach so far to demonstrate its jurisdiction, the NPRM exposes nothing more than its absence. No court has ever upheld a delegation of such limitless discretion to regulate or not, at will, to the Commission under the doctrine of ancillary jurisdiction.
Unchecked regulatory discretion under the amorphous doctrine of "ancillary jurisdiction" is every bit as big a danger to a free and open Internet as any of the other dangers the NPRM posits to support the proposed network neutrality rules. If there are to be "rules of the road" for the Internet, it is Congress that must write them. Paraphrasing Chief Justice Burger's observation in Midwest Video I, the explosive development of the Internet "suggests a need for a comprehensive re-examination of the statutory scheme as it relates to this new development, so that the basic policies are considered by Congress and not left entirely to the Commission and the courts."
It appears that the Commission too is coming to doubt the efficacy of its ancillary jurisdiction to support its proposed network neutrality rules. Last week, a skeptical panel of the D.C. Circuit Court of Appeals heard argument on the FCC's claims of ancillary jurisdiction to support its BitTorrent ruling, which are nearly identical to those contained in the network neutrality rulemaking. In the wake of what most observers agree was a tough morning in court, the Washington Post reports that the FCC leadership is already considering a jurisdictional "Plan B." Plan B appears to be consideration of steps to re-classify broadband Internet access service from an unregulated "information service" to a highly regulated "telecommunications service" - that is, a public utility service - under the Act. This would subject broadband Internet service providers to what Kazantzakis "Zorba the Greek" would call the "full catastrophe" of Title II common carrier regulation.
Playing the game of identifying "who's a common carrier?" is a perennial favorite of telecommunications attorneys. The reasons why it might not be as easy as it sounds to just "re-classify" broadband Internet service as a common carrier offering are touched upon briefly in Part VI.B. of my comments. If this is the FCC's new approach to Internet services, my suggestion, per Betty Davis' immortal performance in the 1950 film drama All About Eve, is to "Fasten your seatbelts, its going to be a bumpy night!"
The best alternative, also suggested in the Washington Post article, is for the FCC to use its present network neutrality proceeding to gather data and economic analysis on the question of the need for regulation of the Internet and Internet services that Congress may call upon when it turns its attention to the need for reform of the FCC and the Communications Act.