May 3, 2010 | By Fred von Lohmann

Net Neutrality: FCC Trojan Horse Redux

The Washington Post reports that FCC Chairman Genachowski is considering basing the FCC's proposed net neutrality rules on precisely the legal foundation discredited in a recent court ruling:

Specifically, he is exploring a legal push under the current legal framework for broadband, which is under Title I, that would make possible the FCC’s push for a new net neutrality rule and reforms under a national broadband plan, the sources said. That could include a legal push in courts where it would assert that the FCC has the mandate from Congress to deploy broadband to all Americans in a timely manner.

This is a bad idea, no matter what your views of the wisdom of the FCC's proposed net neutrality regulations.

While we're big fans of net neutrality, we worry that the FCC may want to build its net neutrality regulations on a rotten legal foundation—"Title I ancillary authority"— which is both discredited and unbounded. As we've said before, if “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, the FCC could just as easily invoke it tomorrow for any other Internet regulation that the Commission dreams up (including things we won’t like, like decency rules and copyright filtering). That's why we cheered the D.C. Circuit Court of Appeals ruling in early April 2010 that reined in the FCC's authority to punish Comcast for interfering with its subscribers' use of BitTorrent. While we were at the forefront of uncovering and condemning Comcast's behavior, we don't think that the FCC has—or should have—broad powers to regulate the Internet for any reason that strikes the Commissioners' fancy.

But now, apparently urged on by lobbyists from the biggest phone companies, FCC Chairman Genachowski appears poised to march down that road again, potentially turning the net neutrality proceeding and the National Broadband Plan into a Trojan Horse for unrestrained FCC authority to regulate the Internet.

Whatever your views on net neutrality, this is a terrible idea. If you oppose the proposed FCC net neutrality regulations because you are worried about expansive federal regulation of the Internet, then you should oppose an expansive reading of "Title I ancillary authority," because that reading would be an invitation for even more federal regulations down the road.

And if you support net neutrality regulations from the FCC, it's hard to imagine a less stable legal footing than the theory that the D.C. Court of Appeals just rejected in the Comcast ruling. There, the court found that the Commission had overstepped the limits of its "Title I ancillary authority" when it disciplined Comcast for doing exactly the sort of thing that the proposed net neutrality rules would prohibit. There is little chance future network neutrality rules could withstand a court challenge if the FCC rests on the same discredited argument that the court just rejected. In fact, following the Comcast ruling, many net neutrality advocates asked the FCC to rely on a different source of authority, Title II of the Communications Act, which applies to telecommunications "common carriers." Title II would certainly provide a more stable, and narrower, basis of authority to impose open network rules, as well as other regulations familiar to telecommunications providers.

The legal machinations are arcane, but if the Commission takes this approach, it will not only be pressing for the kind of dangerous authority already rejected by D.C. Court of Appeals, but it also will face a battle from big Internet access providers over every rule the FCC announces, including net neutrality rules.


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