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Comcast vs the FCC, a
predictable loss for a fair Internet
By: Scott Bradner
Government regulators do not have the power to make up their responsibilities. Regulators get their authority and scope from laws passed by state or federal legislatures. In the case of the Federal Communications Commission (FCC) the law is the Communications Act of 1934 as amended over the years. (www.fcc.gov/Reports/1934new.pdf) It was no surprise to me that the US Court of Appeals in Washington DC ruled last week that the FCC had exceeded the authority and scope given to it by the Communications Act when the FCC ordered Comcast to stop violating the FCC's Internet principles. (http://pacer.cadc.uscourts.gov/common/opinions/201004/08-1291-1238302.pdf)
The Appeals court was quite direct in its conclusion. They ruled against the FCC "because the Commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any statutorily mandated responsibility." i.e., the FCC had not been able to show that any part of the law gave the FCC the authority to do what it had done. The court pointed out that if they had accepted the FCC's arguments "it would virtually free the Commission from its congressional tether."
When I wrote about the likelihood that the decision would be overturned I got soundly admonished by some of the Washington insiders that had advised the FCC to take the path that the FCC took. I was not seen as being true to the cause. Sorry, while I think the cause is important, I cannot ignore the law.
In many ways the original Comcast case was about as perfect an example of why the cause is important to all Internet users as one could have concocted. The particular approach Comcast had to a problem of their local networks getting congested was unfair, done in secret and denied when caught. Since being outed, Comcast has revised their approach to one that is quite fair and Comcast has been quite open about what they are doing.
Since the Appeals Court decision all of the major players in the Internet service business have gone out of their way to say that they supported the FCC's Internet fairness principles. If we could trust that all Internet service providers would always follow these principles there would be no need to worry. But, in the few days since the decision there has already been a case where an ISP has been accused of secretly redirecting people who wanted to perform Google searches to the ISPs own search engine. The exact sort of thing that the us network neutrality proponents are worried about.
A number of people have called for the FCC to reclassify Internet service providers as falling under the common carrier rules of Title II of the Communications Act. In a way this makes a lot sense. Clearly the Internet is now THE telecommunications infrastructure in the US, if not the world. Voice, video and data have all moved to the Internet. If Title II regulations were needed for telephone carriers when they ran over their own analogue phone wires why is it not needed when the same telephone carriers have merely moved the voice service to the carrier's own digital wires and fiber optic cable?
One big reason is that the Title II common carrier regulations are the very ones that have been used to control every aspect of traditional telephone service for decades. These regulations provided us with reliable and reasonably priced and totally non-innovative telephone service. The term "Internet" should not be used in the same sentence as "non-innovative" so there are a lot of dangers in taking that path.
Congress might be able to come up with a better solution, but not in an election year as polarized as this one, so maybe the status quo is about as good as we can get for a while. Though maybe, the Federal Trade Commission could decide that secret ISP manipulations are unfair trade practices and thus force ISPs to at least tell us when they are mucking up the 'Net.
disclaimer: "Common" is not a normal part of
the Harvard vocabulary and I have not seen a university opinion on applying the
term to the Internet so the above is my own view.