How "net neutrality" became a separation of powers story

|The Volokh Conspiracy |

So, to review where we are: as everyone knows by now, back in November, President Obama called on the FCC to reclassify Internet services as "telecommunication services" under the Communications Act; the Act gives the FCC broad powers to regulate "telecommunications services" as public utilities, and Obama called on the agency to use those powers to impose a number of non-discrimination, common-carrier-like rules on Internet Service Providers: no discriminatory blocking of Internet traffic, no discriminatory throttling of Internet traffic, and no "paid prioritization" (fees for obtaining preferential treatment). And the FCC responded, last week, by releasing its proposed rules implementing the reclassification and proposing specific non-discrimination obligations.

I've thought for a while that the hard question about net neutrality is not whether a firm non-discrimination rule for ISPs is, or is not, a good idea—it is. The hard question about net neutrality is the institutional one: if we think non-discrimination by ISPs is a good idea, how do we get them to be non-discriminatory? And in particular: Is the FCC well-positioned to help us reach the non-discriminatory goal without doing too much ancillary damage?

Republicans (and others) have been fuming about the Obama-FCC play here—but interestingly and most importantly, not on the merits and substance of the proposal, but on the institutional process question. Senator Thune, the new chairman of the Senate Commerce Committee, has been particularly outspoken: he wants to get the FCC out of the business of exercising regulatory oversight over the Net, and he has prepared a draft bill (along with the Republican Chairman of the House Commerce Committee, Fred Upton) that would do two things, by statute: impose the non-discrimination obligations on ISPs and, simultaneously, disable the FCC from reclassifying it and treating it as a regulatable public utility.

Two things are worth noting here. First, it does look like, on the merits, the proponents of net neutrality have prevailed. There's now pretty broad support, across the political spectrum, for imposing these common carrier-like obligations on ISPs. That's a really important little development; it's hard to see us coming out of this without some sort of net neutrality rules in place, and that represents a rather huge victory for net neutrality proponents.

But the competing institutional proposals expose a really important question about how best to accomplish that -and I'm with Congress on this one. [So is Larry Downes, here ] The FCC is soft-pedaling what is undeniable: once reclassification occurs, the range of regulatory actions that the FCC could take broadens considerably, up to and including rate regulation and regulation of the kinds of businesses that ISPs are permitted to operate (all in the name of ensuring that they don't give favorable discriminatory treatment to affiliated businesses). Chairman Wheeler assures us: we're not going to do any of those things in regard to the Internet, that's all old-school regulation and we're into new-school, light touch regulation now, and we will "forbear" from imposing any obligations outside of the narrow range contained in the current proposal.

A lot of folks are on the FCC's side in this fight, including many of my colleagues at OTI-New America and in academia. Over 30 law professors have submitted a letter to the FCC in support of reclassification and FCC rulemaking action, in which they say the following:

[T]he FCC must reclassify broadband as a Title II telecommunications service in order to prohibit paid prioritization. Doing so would not lead to over-regulation: we would expect and encourage the FCC to regulate with a light touch under Title II through application of its forbearance authority.

But that's all they say about the "over-regulation" question. "Expect and encourage" doesn't quite do the job for me, especially when they do not explain the basis for that expectation. They may read the history of communications law in the 20th century differently than I do, or they may have more information than I have about the future composition of the FCC and the ways in which a future FCC under a future president will deal with these issues, or they may be more confident that the FCC will resist—as it has occasionally, though rarely, done in the past—pressures from incumbent providers to use the FCC rule-making process as a barrier to entry for new providers and innovative services.

I like the Thune-Upton approach a lot more—though I do seem to be in a minority among many of my colleagues in academia and over at OTI/New America. If we want non-discrimination—and we should, and we do—we can get it, directly, by Congressional action. No need to have the FCC continually looking over the ISPs' shoulders, into the indefinite future, to accomplish that.

[Please note that as always here on the VC, the views I express are entirely my own, and should not be attributed to any of the institutions with which I'm affiliated.]

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