The legally explosive concept of regulating Net access under Title II is one for Congress to handle (and reject), argues Stanford Law Fellow Larry Downes.
Editors' note: This is a guest column. See Larry Downes' bio below.
Even before the D.C. Circuit's decision in Comcast v. FCC, a great deal of ink has been spilled over speculation that the FCC will rescue its marooned Net neutrality rulemaking by "reclassifying" broadband Internet access as a "telecommunications service" under Title II of the Communications Act. (Some of that ink has been my own.)
Earlier last week, FCC Chairman Julius Genachowski refused to rule out that possibility, telling a Senate Committee that "we haven't settled on a path forward."
But regulating Internet access after leaving it largely alone all these years would be much more difficult than most people think. There are serious legal obstacles to overcome, some of them substantial. Along the way, lawmakers, courts, and consumers are likely to oppose the FCC's means, even if they support the goal of enacting the proposed Net neutrality rules.
That's in part because regulating Internet access under Title II opens it to a wide range of possible regulation and plenty of unintended consequences. Under Title II, for starters, the FCC would have the power to subject Internet access to the full set of common-carrier provisions. These include federal, state, and even municipal oversight on rates, forced sharing of equipment (with any competitor who asks) at fees refereed by the FCC, and new taxes collected on behalf of the Universal Service Fund, which today is used to provide basic phone service to those who cannot otherwise afford it.
Legal landmines everywhere
Fears of some dangerous, legally sanctioned monopoly controlling the broadband market are few and far between. Yet such a monopoly is the reason the Title II rules were created. Common-carrier rules date back to the Stone Age--back, that is, when the old AT&T, a "legal monopoly," was the only company offering telecommunications service and equipment.
Those rules predate the breakup of the Bells. They came before cable companies got into the data and phone business, before the World Wide Web was woven, before cellular, satellite and fiber-optic connectivity became commonplace, and before iPhones, Google, and well, you get the idea.
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. "The FCC has the legal authority to change the label, as long as it can provide a good reason," University of Michigan Law professor Susan Crawford wrote in The New York Times earlier this month.
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.
Since the 1996 revisions that introduced the distinction, the agency under Democratic and Republican administrations alike has consistently and loudly argued that, at the very least, broadband Internet through the cable system is not, and never was meant to be, a telecommunications service. That was an argument the agency made to the U.S. Supreme Court in 2005's Brand X case, when a Southern California ISP challenged the refusal of a local cable company to give it access to its equipment--access it compared to its legally sanctioned use of the local phone company's infrastructure.
The question in Brand X was not which title made more sense for broadband Internet. The question was where Congress put broadband when it passed the 1996 Act. The FCC argued successfully that the definition of information services included cable Internet service. Later, the agency decided that Internet access offered by traditional phone companies was also an information service under Title I, at least for DSL speeds. (Dial-up Internet is still treated as a telecommunications service under Title II.)
Data communications has always been an information service
Brand X was no mistake. The idea that information services should remain unregulated dates back well before the Internet, to the development of early data communications applications. Companies such as IBM and DEC developed proprietary network architectures and offered services to their customers using leased phone lines. The old Bell monopoly was forbidden to offer competing services until the company's court-ordered breakup in 1984.
By 1996, when Congress finally rewrote the law to reflect the breakup, using the telephone network for data transmission was a well-established feature of "distributed" business computing. Consumer data communications was also growing rapidly through the likes of AOL, Prodigy, and CompuServe. The Internet was becoming a popular protocol for that communication, and the Web had been around since 1993.
There was no question in 1996 of bringing all that innovation under rules created to control the old AT&T. Rather, the debate was over how much of the old rules were still needed 11 years after the monopoly had been broken up. There was even serious consideration given to deregulating everything and disbanding the FCC, much as Congress had done with the airline industry and its former regulator, the Civil Aeronautics Board, or the railroad industry and the now-defunct Interstate Commerce Commission.
Resistance would not be futile
Given this long and unbroken history, any effort to "reclassify" broadband without Congressional action would be met with vigorous legal challenges every step of the way.
Although the objective of that fight might simply be to enact Net neutrality rules and otherwise leave broadband providers alone (for now), expect to find some odd bedfellows joining the resistance. The communications industry, which has operated for the last several years under the belief that unregulated broadband Internet was settled law, would lead the charge. But there are plenty of other constituencies that would object to the FCC's playing fast and loose with its governing statute.
That includes members of Congress who might otherwise be sympathetic to the Net neutrality cause but worried about an agency usurping legislative power. The courts, which believe that they are the only ones that get to reverse court decisions, might also prove hostile to the idea of upending Brand X on the mere promise of a "good reason."
Consumers, too, might find common cause with the antireclassification movement. Even if some consumers like the idea of FCC-enforced Net neutrality rules, most Americans are justifiably skeptical of untethered legislating by unelected civil servants.
Consider reaction to an alternative policy decision the FCC hasn't made but plausibly could make. Today, the agency enforces its decency rules--you know, swear words and wardrobe malfunctions--with enthusiasm against broadcast radio and television networks, but has never done so against cable television.
Suppose, armed with the "good reason" that America is sinking into a culture abyss, the FCC similarly decided to "reclassify" cable programming and started to hand out fines to nearly every show on HBO, Showtime, and Comedy Central?
Hypotheticals aside, the FCC has given consumers plenty of reasons to doubt its unilateral determinations of what's best. In 2002, for example, the agency enacted rules that required manufacturers of televisions and other devices capable of receiving digital-television signals to introduce "broadcast flag" technology. The broadcast flag, urged by large media companies, would have allowed broadcasters to automatically control how, or even if, their programs could be copied to DVRs and other time-shifting devices.
As in the Comcast case and the proposed Net neutrality rules, the agency relied solely on its ancillary jurisdiction in issuing the rules. Again the D.C. Circuit shot them down (PDF), in language that closely parallels the Comcast decision. "Are washing machines next?" one judge asked incredulously at oral argument. Said another: "You can't rule the world."
Indeed. Congress had good reason for keeping Internet access out of the FCC's clutches in 1996. Very little that has happened since then suggests that the decision was anything but brilliant foresight. But even if that's wrong, putting the Internet under Title II would be a radical change in policy--one to be made by Congress, not the FCC or its cheerleaders.
Whether one is for or against the new rules proposed by the FCC in October to make itself the "smart cop" on the Internet beat, getting there by blowing up years of settled law and sensible legal and policy choices dating back to the breakup of the old AT&T is a terrible idea. And we already have plenty of those.