Just the other day, leaders from the House and Senate said they planned on updating the Communications Act. Maybe they've finally started listening to us - we proposed doing this back in 2005, with PFF's Digital Age Communications Act (DACA). Or, perhaps the FCC's so-called "Third Way" doesn't look like the "no-brainer" that the agency spun in its press releases. Well, whatever their intentions may be, it certainly couldn't arrive at a better time.

The framing is all important, of course. Art Brodsky of Public Knowledge (ostensibly one of the groups "writing" the next Act) says Americans shouldn't worry about the FCC's "Third Way." In his view - "The government is not taking over the Internet. What the government is doing is engaging in traditional consumer protection, traditional regulation of a telecommunications service that will get people to the Internet." PK seems happy with this model - whether done at the FCC, or at Congress' hands.

Hmmm...Getting people to the Internet? Traditional, simple stuff. Sort of like strolling to the store, or peddling to the park. Or, like in childhood, making a call from tin cans and string - which is what'll result if PK and their ilk have their way.

PFF was fortunate enough to get a letter-to-the-editor published in the NY Times this weekend, responding to the paper's call for broad Net Neutrality rules which would regulate broadband services.

Regulate the Internet?

To the Editor:

In "The F.C.C. and the Internet" (editorial, April 19), you ignore two important facts to arrive at your sweeping conclusion that the Federal Communications Commission must regulate the Internet to ensure its health and growth.

Just a reminder that PFF is hosting a panel discussion on "Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?" this Tuesday (April 27th) from 10:00-11:45 a.m at Hogan & Hartson LLP (555 13th Street NW, Washington, DC). To hold a seat, please RSVP for the event here.

The event features an all-star cast representing all sides (cable, broadcast and programming) of the fight over the FCC's must-carry rules, which require cable television systems to dedicate some of their channels to local broadcast television stations. The Supreme Court narrowly upheld these "must-carry" rules in the mid-1990s. But last year's DC Circuit decision striking down the FCC's 30% cap on cable ownership lead Cablevision to challenge the must-carry rules. The Supreme Court will soon announce whether it will review the Second Circuit's decision last June upholding the rules. Speakers at our event include:

• Dan Brenner, Partner, Hogan & Hartson LLP; former director of regulatory and legal affairs at the National Cable & Telecommunications Association (NCTA)


• Matt Brill, Partner, Latham & Watkins LLP; counsel for Discovery Communications, amicus in Cablevision case; former Senior Legal Advisor to FCC Commissioner Kathleen Abernathy


• Jack Goodman, Counsel, WilmerHale; former general counsel of the National Association of Broadcasters (NAB)


• Howard Symons, Member, Mintz Levin; counsel for Cablevision; former Senior Counsel to House Subcommittee on Telecommunications

Berin Szoka and I will co-moderate the session. Hope to see you Tuesday. Register for the event here.

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).

I was invited to participate in an April 13th conference call hosted by Kelly Cobb on behalf of the Internet Freedom Coalition to discuss the D.C. Circuit's recent decision in Comcast v. FCC and its impact on the FCC's Open Internet rulemaking proceeding. My task was to offer an explanation of the procedure by which the FCC might attempt to impose the Communications Act's "Title II" regulations on the Internet without congressional authority or approval, and what judicial challenges might emerge from such an action. What follows are my remarks, as prepared for presentation.

The D.C. Circuit ruled today in favor of Comcast in the company's challenge to an FCC enforcement action concerning its provision of Internet service. The court's ruling reaffirms the primacy of the rule of law and the legislative authority of Congress to determine whether and how our nation's communications networks are to be regulated. I have said from the outset in my "The Law is Whatever the Nobles Do" series that the FCC's action against Comcast's Internet network management practices was unlawful because Congress has not delegated to the FCC regulatory authority over the provision of Internet services, and the FCC may not self-generate such authority through creative use of the doctrine of implied or "ancillary jurisdiction." The court's decision rests on the foundational principles that the FCC's regulatory authority is not unbounded, the agency is not free to make it up as it goes along and the FCC possess no plenary authority to regulate an Internet service provider's network management practices. That is to say, the administrative nobles in our system must follow the laws as Congress writes them; they do not stand above the law and cannot self-generate their legal authority.

As the D.C. Circuit wrote, the FCC may properly exercise its ancillary jurisdiction over matters not expressly mentioned in the Communications Act, but only when that exercise is reasonably ancillary to—that is, in support of—an expressly-delegated regulatory responsibility. In its Comcast-BitTorrent Order, the FCC could not show, despite strenuous efforts, that regulating Internet network management practices was reasonably related to any of its express regulatory mandates in the Communications Act. This all-important limitation on the exercise of its implied powers, according to the court, is what keeps the agency from freeing itself "from its congressional tether." Paraphrasing an earlier Supreme Court decision, the court observed that the FCC's Comcast decision, not only "'strain[ed] the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts,'" it sought to "shatter them entirely."

C-SPAN is really quite incredible when you think about it. When I was growing up in the 70s, there was nothing like it. Like most other Americans, my informational inputs about national news and politics were limited to what a couple of old white dudes in bad suits delivered each night around 6:30 on the three VHF channels I had access to. And no national newspapers were delivered to my small town in rural Illinois, so I had to rely on crummy local papers to fill the void via whatever national reporting they offered, which wasn't much.

And then came C-SPAN. C-SPAN alone covers more political and civic-minded activity in the course of a week than most of us probably came into contact with in our entire lives just 30 years ago. Consider these data points, which Peter Kiley, Vice President of C-SPAN Networks was kind enough to help me aggregate. In the 2009 calendar year, C-SPAN provided the following amount of first run programming across their three channels:

• 8,438 overall hours of programming;


• 2,709 hours of House & Senate floor activity; and,


• 1,222 hours of House & Senate committee hearings.

Moreover, C-SPAN recently created the C-SPAN Video Library, which archives 23 years worth (1987-on) of fully searchable (and free) video content, including:

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.

Three months ago, when the DC Circuit struck down the FCC's "Cable Cap"--which prevented any one cable company from serving more than 30% of US households out of fear that he larger cable companies would use their "gatekeeper" power to restrict programming--the New York Times bemoaned the decision:

The problem with the cap is not that it is too onerous, but that it is not demanding enough.

Even with the cap -- and satellite television -- there is a disturbing lack of price competition. The cable companies have resisted letting customers choose, a la carte, the channels they actually watch....

[The FCC] needs to ensure that customers have an array of choices among cable providers, and that there is real competition on price and program offerings.

Perhaps the Times' editors should have consulted with the Lead Technology Writer of their excellent BITS blog. Nick Bilton might have told him the truth: "Cable Freedom Is a Click Away." That's the title of his excellent survey of devices and services (Hulu, Boxee, iTunes, Joost, YouTube, etc.) that allow users to get cable television programming without a cable subscription.

Nick explains that consumers can "cut the video cord" and still find much, if not all, their favorite cable programming--as well as the vast offerings of online video--without a hefty monthly subscription. (Adam recently described how Clicker.com is essentially TV guide for the increasing cornucopia ofInternet video.) This makes the 1992 Cable Act's requirement that the FCC impose a cable cap nothing more than the vestige of a bygone era of platform scarcity, predating not just the Internet, but also competing subscription services offered by satellite and telcos over fiber. That's precisely what we argued in PFF's amicus brief to the DC Circuit a year ago, and largely why the court ultimately struck down the cap.

Bilton notes that "this isn't as easy as just plugging a computer into a monitor, sitting back and watching a movie. There's definitely a slight learning curve." But, as he describes, cutting the cord isn't rocket science. If getting used to using a wireless mouse is the thing that most keeps consumers "enslaved" to the cable "gatekeepers" the FCC frets so much about, what's the big deal? Does government really need to set aside the property and free speech rights of cable operators to run their own networks just because some people may not be as quick to dump cable as Bilton? Is the lagtime between early adopters and mainstream really such a problem that we would risk maintaining outdated systems of architectural censorship (Chris Yoo's brilliant term) that give government control over speech in countless subtle and indirect ways?

The Wall Street Journal reports that "FCC staff also are studying whether to revive 'open access' rules, which would require Internet providers to lease their networks to rivals at government-regulated prices." "Revive" is an interesting choice of words, as it implies that such rules were once alive, but are presently dead, or at least comatose. But in the case of cable Internet service providers, it is simply wrong. Cable modem service, a term the FCC invented for high-speed Internet over cable service, has never been subjected by the FCC to "open access" or, more precisely, common carrier regulation. Not once; not ever.

Scott Cleland wrote a nice little piece on the tendency of net neutrality advocates to re-write Internet history so that the steady movement away from government ownership and control, including economic regulation, during the Clinton Administration is air-brushed out of history. My point is less global, but no less important. The terms, conditions and prices of cable modem service at both the retail and wholesale level have never been subject to regulation.

Instead, the FCC made the conscious decision to classify the service not as a highly regulated common carrier telecommunications service, but rather as a then-unregulated "information service." This decision was made for the purpose of encouraging broadband deployment and permitting such Internet services to be provided in a minimally-regulated environment, and it was upheld by the U.S. Supreme Court in the Brand X case. And, yes, the FCC launched a companion rule-making to consider whether to impose any special requirements on this information service pursuant to its Title I "ancillary jurisdiction. But it has never acted on that proposal. Thus, there is no rate-regulated leasing of cable modem lines for regulators to revive.

But I digress. The real story is that the FCC, for the first time, is seriously considering imposing common carrier-like economic regulation on cable Internet providers, in the context of its charge from Congress to develop a "National Broadband Plan" to increase broadband deployment. Setting that irony aside for the moment, we can, and will, debate the merits and drawbacks of the open access issue for some time to come (and rest assured, it will feel like Groundhog Day for many of us). But let's not start the debate from the false premise that we are just returning to the good old days of yore.