K Street Misinformation Pours into Gutter - FCC Must Know Limits of Its Magic

A lot of misinformation has recently emerged about the FCC's so-called ability to dodge the uncomfortable implications of Comcast v. FCC, and effortlessly reclassify information services into common carrier services. As if this can be done, willy-nilly, with some regulatory incantation that only the Chairman of the present Commission can whip up.

Not surprisingly, many media outlets - old and new - seem all too willing to support Internet policy changes without critical analysis other than: "Did Bush regulators 'screw up the Internet' by keeping it free of regulation? Then going in the opposite direction is alright" (check out this doozey by the NY Times to get an idea).

Nowhere is this more apparent than on Twitter or in the blogosphere. Just look on your TweetDeck at #FCC, #NetPolicy, #Broadband or #NetNeutrality and you'll see tons of "grassroots" voices trafficking in Free Press- or Public Knowledge-like diatribes, screaming, "Help #Congress & #FCC keep our Internet free!!!"

Their answer - seemingly like the Commission's (???, we don't know for sure yet) - is to impose onerous Net Neutrality / non-discrimination rules on networks so "all Internet content can remain free."

Former Obama official, Susan Crawford, says it's easy-peasy. In her view, the FCC can -

...[P]ursue both network neutrality and widespread access to broadband by formally relabeling Internet access services as 'telecommunications services,' rather than 'information services,' as they are called now. All the commission needs to do is prove it has a good reason. (emphasis added)

Well, Susan, it's a bit more complicated than that. As PFF's Barbara Esbin points out with great clarity:

To impose Title II regulations on the Internet, the FCC would need to establish a rational evidentiary and sound legal basis to bring Internet service providers under its Title II authority through an act of regulatory "reclassification."

To accomplish this procedurally, the FCC will have to:

1. Adopt either a Notice of Inquiry or Notice of Proposed Rule Making proposing that the FCC reverse four of its own prior orders directly on point, one of which has been upheld by the U.S. Supreme Court in NCTA v. Brand X, so that it could declare Internet services to be "telecommunications services."


2. Receive public comment on its proposal creating a record that on balance supports its proposed reclassification.


3. Adopt either a Declaratory Ruling or a Report and Order providing a reasoned factual and legal basis for changing the classification and regulatory treatment for Internet services.

To survive a challenge in court, the FCC will have to:

1. Demonstrate why reclassification of Internet access service from an "information service" to a "telecommunications service" is not arbitrary and capricious.


2. Demonstrate that it has Congressional authority to regulate the provision of Internet access service as a common carrier offering;


3. Demonstrate that its action does not infringe the constitutional rights of Internet service providers.

Reclassifying broadband Internet access service, in whole or in part, as a telecommunications service will not be easy and the FCC would face many hurdles in gaining judicial acceptance of such a move.

Larry Downes, in an excellent CNet article, has a similar, yet more pointed take. He notes:

Law professors, pundits, stock analysts, and journalists are all grossly oversimplifying the gory details of administrative law by implying or, in some cases, saying outright that the FCC can switch to the old rules as soon as it decides to do so. Some should know better...

That's wishful thinking. Well beyond the dubious goal of getting Net neutrality rules on the books, there are very good reasons that making the change would prove a tough slog. In order to treat broadband Internet access as a Title II service, the FCC would need to navigate a minefield of legal obstacles established to avoid just this kind of regulatory landgrab.

For starters, nothing in the Communications Act gives the FCC authority to decide on its own what is and what is not a telecommunications service. Congress already made that decision. That broadband Internet is an unregulated "information service" is already long-settled law, law made concrete by the FCC itself.

I guess this is lost on (or, purposely hidden by?) people like Crawford, or the trilling "grassroots voices" on Twitter and the blogosphere, or the Free Press and Public Knowledge. Why let the facts intrude into reality?

One thing that I find particularly amusing are paranoid Blog rants like this one from Nicholas Economides. Let me quickly sum these / it up: Evil cable companies have hijacked the entire Internet, damning monopoly-hooked users to h-e-double-toothpicks. A purgatory of monopoly fees will ensue. The cure, well, it's easy - simply impose non-discrimination rules on network providers and all will be well.

Where have I seen this before?

K Street is a funny place. Misinformation pours from it to the gutters. Facts, however, are a stubborn lot; they don't get flushed down the drain as easily. Simply saying something is easy-peasy, loudly, and digitized to oblivion may certainly stir the virtual troops, but, thankfully, policymakers know otherwise.

Even those that think they can practice magic.