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A Legal Setback for Net Neutrality Advocates

On Tuesday April 6th, a three-judge panel from the federal appeals bench ruled that the Federal Communications Commission has no authority to place “net neutrality” requirements on Internet Service Providers (ISPs). The unanimous ruling overturned the FCC’s August 2008 order for Comcast to cease slowing BitTorrent transfers. Comcast later voluntarily changed its own policy and agreed to treat BitTorrent traffic no differently from other traffic. However, the issue of the FCC’s legal authority still remained, and has now been addressed by federal judges.

The Case: FCC v. Comcast

The FCC based its legal argument on its 2005 “Internet Policy Statement” (PDF), which declared (among other things) that internet users had the right to freely access the internet content of their choice, subject to the requirements of “reasonable network management.” Comcast, the FCC argued, had violated the Internet Policy Statement by its traffic discrimination against BitTorrent, which did not fall within “reasonable network management.”

Comcast countered by arguing that the FCC had no right to regulate its network management in any way. The Internet Policy Statement was a set of guidelines, not rules, and the FCC admitted its unenforceability within the statement itself. Until the FCC makes the “Policy Statement” an active, binding policy, Comcast argued, the agency had no authority to enforce its rules.

The FCC, in response to sharp questions from the court about the source of its authority and asking which particular statute Comcast had violated, claimed that its “ancillary” power to implement its Congress-granted authority gave it the right to regulate Comcast. This ancillary power comes from Title I of the 1934 Communications Act, which gives the FCC to promulgate regulations “reasonably ancillary” to the agency’s specific duties outlined elsewhere in the Act.

The court did not buy this argument. In its opinion (PDF), the court stated that “ancillary” jurisdiction was not free-floating but had to be related to an explicit statutory grant of power. Finding no express Congressional permission for the FCC to regulate Comcast’s network management, the court threw out the FCC’s order.

The Larger Issue

The FCC’s fight for “net neutrality” is a part of its stated general agenda to make the internet easily accessible to every American. Through its proposed National Broadband Plan (NBP), submitted to Congress on March 16th, 2010, it intends to make high-speed internet “the country’s dominant communication network.”

Aspects of the NBP include a subsidy for ISPs in rural parts of the country, auctioning broadband spectrum to wireless providers, a “digital literacy corps” to help Americans learn online skills, up to $16 billion for a public safety network to coordinate first responders to disasters and crises, a goal of having 100 million households with 100 megabit-per-second internet access (contrasted with the current average of three to four megabits-per-second) by 2020, and reduction of phone subsidies in favor of internet subsidies.

The FCC faces push-back from the television industry in particular, which is currently using parts of the over-the-air spectrum that, under the NBP, may be auctioned off for broadband use. The FCC already fought and won a similar battle with the enforced end of analog transmissions of TV signals—the spectrum used for over-the-air analog transmission was reclaimed (and all analog TV signals replaced with digital ones) and auctioned off.

What will likely happen next?

The FCC’s public reaction to the recent federal court decision has been unabashed and undismayed. In its release on April 8th announcing its 2010 Broadband Action Agenda (PDF), an elaboration on the specifics of the NBP, the FCC Chairman Julius Genachowski declared, “The court decision earlier this week does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals. The court did not question the FCC’s goals; it merely invalidated one technical, legal mechanism for broadband policy chosen by prior Commissions.” The announcement then lists those goals and the steps the FCC proposes to implement them. Ars Technica explains some of the FCC’s plans here.

The FCC may also have another legal option available to protect net neutrality specifically, in addition to implementing the NBP. University of Michigan law professor Susan Crawford persuasively argues that the FCC can easily acquire the legal authority to enforce net neutrality.  In an op-ed column for the New York Times, Professor Crawford points out that the recent federal court decision rests upon the labeling of ISPs as “information services” rather than “telecommunications services.”  Until 2002, the internet was considered a telecommunications service. But under the George W. Bush administration the FCC re-labeled high-speed internet providers as providers of “information services” because they offered services other than internet connection (like e-mail and web-hosting).

Why does this re-labeling matter? Because the Communications Act gives the FCC the authority to regulate “common carriers,” which includes “telecommunications services” and does not include “information services.” Since the FCC is in charge of this labeling process (which is how it changed the label from “telecommunications services” to “information services” in the first place), it is legally empowered to reverse its own decision and simply change the label back to “telecommunications services”—provided that it can offer a good reason for doing so. Professor Crawford argues that the reason for reversing the reclassification is obvious, because people buy internet services based on speed and price, and not because of the extra services some high-speed providers offer (such as e-mail).

At this point the FCC has not declared any intention of undoing the Bush administration-era re-labeling of high-speed internet.  Its legal authority to do so, however, presents an intriguing possible twist in this ongoing battle.

About the Author

Anjali Bhat

Anjali is a 2L at Columbia Law School.
  • David Coleman

    The FCC is right to base its argument on the supposition that internet users had the right to freely access the internet content of their choice. This reflects a value that is at the heart of all free societies that people have a right to freely publish whatever they wish and communicate with others in a way that is free and open. Our freedom to use the internet should also reflect this fundamental right.

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