The FCC has released a proposed set of rules for an open and transparent internet, and awaits comments to its net neutrality proceeding in January. The purpose is noble, to protect the public from discriminatory practices by Internet Access Providers. For example, this would prevent an IAP from arbitrarily slowing down a customer's internet, merely because he or she is streaming movies or downloading large files, favoring a particular content provider or technology over another (nevermind that there is already typically a 3 tier system prioritzing, in this order, 1) voice calls 2) tv and 3) Internet on cable and fiber networks). While this is a great proposal in principle, we cannot overlook one important question: does the FCC actually have authority over the internet to make these rules?
A History Lesson
Empowered by Congress
Congress created the FCC through the Communications Act of 1934. The government wanted a single agency with broad authority to regulate interstate commerce in telephone and radio services.
Congress later passed the Telecommunications Act of 1996, restating the authority of the FCC. In response to an active and evolving telecommunications industry, the new Act further opened the markets to competition and removed unnecessary regulatory barriers to entry.
The FCC derives its power from Congress. Thus, it can only regulate what Congress has authorized.
Congress Did Not Carve Out Authority Over the Internet
Congress expressly granted the FCC authority over interstate communications in radio, television, wire, satellite and cable.
Congress did not intend the Internet to be regulated. Congress only mentions the internet twice in the Telecommunications Act, under sections 157 and 230.
Section 230 is a provision within the Communications Decency Act. The CDA attempted to protect minors from indecent and obscene materials online. In section 230(a)(4), Congress recognized that the Internet has "flourished...with minimum government regulation." Furthermore, in section 230(b)(2), the policy of the US is for an Internet "unfettered by state or federal regulation." As noted in Zeran v. America Online, Inc., the "Communications Decency Act (CDA) was enacted, in part, to maintain robust nature of Internet communication and, accordingly, to keep government interference therein to minimum." [italicized for emphasis]
Even though the FCC does not have express authority over the Internet from Congress, the FCC claims that it has "ancillary authority."
Ancillary means that the power is additional or supplementary to the already authorized power. Even though this power is unauthorized, it is being used to enforce regulations that are already authorized.
The FCC is currently trying to assert ancillary authority over the internet in the Comcast v. FCC case. In this case, the FCC sanctioned Comcast for drastically reducing internet speeds of BitTorrent users. Comcast claims that as an ISP, the FCC has no authority to sanction it in the first place.
The FCC argues in its reply brief to Comcast that Congress gave the FCC comprehensive and expansive powers over new communication technologies. The FCC cites National Broadcasting Co., Inc. v. United States, in which the Supreme Court emphasized the importance of these powers in a field characterized by constant, rapid, and dynamic change. Broadband internet is a relatively new communication technology. Thus, the FCC reasoning goes, it has an implied power to regulate ISP's. (FCC reply brief, p 30)
Furthermore, The FCC also claims that courts have continually supported ancillary authority.
While courts have upheld ancillary authority, it has been limited to applications in which Congress has already expressly granted authority. For example, the FCC could have ancillary authority over telephone equipment because it has express authority over telephone service providers. Since there is not express grant over the Internet, it is less likely courts will broaden the authority to encompass it. Simply put, the authority cannot be ancillary because it is not additional or supplementary to an existing power.
Sure, Comcast should be ridiculed for its throttling of Bittorrent, but allowing the FCC to assert authority over the Internet using broad, ancillary jurisdiction may cause greater problems down the road. The Electronic Frontier Foundation, despite their interest in an open and free internet, correctly suggests this acquiescence could be a dangerous Trojan horse. While users should have a open and transparent internet, perhaps the FCC is not the one who should regulate it, at least with so broad a reach as it may wish under its ancillary powers. A common example is that currently, the FCC can fine and punish television and radio stations for broadcasting indecent materials. The trojan horse argument asserts that there is nothing to stop the FCC from later turning its eye from an "neutral" internet and applying these same restrictions online. The internet is a place where people can find truly diverse and uncensored information. This must be preserved. Once the FCC is given the keys to the Internet, there is nothing to stop them from later locking all the doors and windows through stricter and harsher rules.
An easy way to picture this issue is to imagine the FCC as a crossing guard. The guard has been given authority to stop traffic throughout the city to protect pedestrians. However, the guard has not been given any authority over the open freeways. The guard claims authority over the freeways because it is implied in his job to protect the people and streets. The problem is that if we let him have this power now, it has dangerous future implications. The guard could later make the roads worse by enforcing more stops, forcing lower speed limits, and determining which cars cannot have access.
Ancillary authority exists, but not over the internet. If the FCC is to exercise jurisdiction over the Internet, clear guidance from Congress (is such a thing possible?) could be of use down the road to avoid a trojan horse.