Comcast v. FCC linkdump

Here are a few notable reactions to the DC Circuit’s Comcast v. FCC ruling last week:
Marvin Ammori, How I Lost the Big One, Bigtime, “I’ll begin with how the decision affects you: it’s really bad news for you and other Americans. I’m sorry to be the one to tell you, but I’m sure you’ve heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet’s role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us.”
Austin Schlick (FCC General Counsel), Implications of Comcast Decision on National Broadband Plan Implementation, “Does the FCC still have a mission in the Internet area? Absolutely. The nation’s broadband networks represent the indispensable infrastructure for American competitiveness and prospects for future job creation, economic growth, and innovation. The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet.”
Susan Crawford, The New York Times, An Internet for Everybody, “But the F.C.C. needn’t change either strategy. It can regain its authority to pursue both network neutrality and widespread access to broadband by formally relabeling Internet access services as ‘telecommunications services,’ rather than ‘information services,’ as they are called now. All the commission needs to do is prove it has a good reason.”
Timothy Haw, Wall Street Journal, Why Net Neutrality Ruling Is A ‘Tragedy’ For Small Businesses, “This would be a tragedy for our nation’s future, for Internet service providers to tell you that you can’t use the big lane that goes fast, but the little lane that goes slowly.”
Art Brodsky, Public Knowledge, Comcast Sees The Downside To Winning Their Net Neutrality Case | Public Knowledge, “The hidden story of Comcast’s glorious victory is that if Comcast were smart, it wouldn’t in the first place have brought the case, which challenged the FCC’s authority over the company’s high-speed Internet service. Some in the telecommunications industry, perhaps even huge companies with three letters in its name, urged (begged?) Comcast not to take the FCC’s ruling to court, because of the possibility that Comcast could actually win and, potentially, win big —which is what happened.”
Jim Louderback, GigaOm, Why Net Neutrality Is Too Important to Leave Up to the ISPs “I think the best alternative, however, would be to reclassify ISPs to a Title II common carrier service from a Title I. This would put broadband into the same category as POTS and other telecommunications services. Self-regulation would be bad, and I’m leery about leaving the decision up to Congress in light of how long they can take to make a decision.”
Robert X. Cringley, InfoWorld, Broadband monopolies 1, Net freedom 0: “Why is Net neutrality important? Because in most areas of this country, broadband access still largely depends on regional monopolies or, in best case, duopolies. If you’re lucky, you get a choice between a Monolithic Former Baby Bell or a Big Five Cable Company, both of which want to sell you Internet, voice, video, and maybe also wireless for $100 to $200 a month.”
Mike Masnick, TechDirt, Net Neutrality Battle Quickly Turns Into Political Food Fight: “The whole thing is a bit of a mess — and, once again, distracts from the larger issues (i.e., the lack of real competition in the space). Now, there’s a reasonable argument to be made that both services do, in fact, have common carrier status. The argument is stronger with DSL, which is built on telco infrastructure that, at one point, was built and run through a gov’t-granted monopoly. But, with both, you are dealing with public rights of way, which at least give some legitimacy to the idea that they should fall under a category that involves oversight from the FCC. But, having already flipped the switch one way, going back the other way is not going to be as easy.”
Matthew Lasar, Ars Technica, Don’t blink: Hard-charging FCC turns broadband plan into action: “Federal Communications Commission watchers everywhere, gird thy loins. However frenetic you thought it was in FCC-land back during the media ownership, Comcast P2P, or Sirius XM merger wars, forget it. The Commission has just laid out the road map and schedule for implementing its National Broadband Plan, and it looks pretty relentless—crucial rulemakings lined up back to back through the rest of the year and into 2011.”
David Weinberger, Joho the Blog » Reclassifying broadband: “I was less depressed than I would have expected about yesterday’s ruling that the FCC does not have the authority to tell Comcast to let us do what we want with our Internet. In part, that’s because I was expecting to lose. In part it’s because this battle is far, far from over. There’s the possibility of an appeal (although the 3:0 decision seems pretty definite), Congressional action, or reclassifying the Internet. The third is the most interesting, although it has its own risks.”
Previously: Comcast and the Information Service/Common Carrier Classification

Comcast and the Information Service/Common Carrier Classification

Yesterday, in an already widely discussed decision, the US Court of Appeals for the DC Circuit ruled that the FCC does not have the authority to regulate network management practices under its ancillary jurisdiction. Comcast Corp. v. Federal Communications Comm’n.
Because control over Internet access is such an important and personal issue, this ruling made the front page o the New York Times and Washington Post today. Time Magazine’s television critic wrote a long blog post about this ruling.
The Communications Act grants the Commission authority to regulate broadcast and telecommunications with specific enumerated powers. And more than a decision on network management practices, the crux of the Comcast ruling is more to do with how the Commission decided to approach regulating broadband back at the beginning of this century. And this decision highlights some of the tensions between letting the Internet itself develop as a forum without too much government regulation and the need to regulate internet access providers in order to ensure that individual users have open access to the Internet itself.
The FCC has the authority to regulate common carrier communications under Title II of the Communications Act. These regulations are meant to ensure that telephone carriers act as common carriers. In a very broad and crude definition, common carriers are required to transmit exactly what they are asked to pass on. Title II requires that carriers not discriminate against or give any unreasonable preference to particular users of its telecommunications services.

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

Title II places other restrictions on common carriers, such as the requirements to charge only set rates, to contribute to the costs of rural telephone systems, and to allow interconnection with the facilities and exchanges of all other telecommunications providers. In order to allow the then-nascent broadband internet access market to develop in a competitive fashion, the Commission decided to classify cable modems as an information service, rather than a telecommunications service, so that they wouldn’t be subject to all of the regulations on Title II services.
Information services are outside the scope of Title II regulation.

The term ‘information service’ means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

A simple way to think about the distinction between common carriers and information services is to think back deep into the past and consider accessing a BBS using a computer and dialing in using a modem. The phone line you use to place the call is a common carrier, but the computer that hosts the BBS at the other end is an information service provider. Even though it’s accessed over the phone line, the BBS is not providing telephone communications services. All the telephone line is doing in this case is transmitting the data.
In 2002, the FCC ruled that cable modem service is properly classified as an information service rather than cable service or telecommunications service offering and therefore is not subject to common carrier regulation, but merely to regulation under the Commission’s ancillary jurisdiction to regulation communications under Title I of the Act. In re: Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities.
The Supreme Court affirmed the Commission’s ability to make that regulatory classification in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005). In a 6-3 opinion delivered by Justice Thomas, the Court overturned the Ninth Circuit and ruled that the Commission acted within the scope of its power to make such a regulatory classification and that the classification should be afforded judicial deference. (Previously: Brand X)
In 2008, the FCC issued a ruling that Comcast’s selective treatment of the BitTorrent protocol was a “discriminatory and arbitrary practice unduly [that] squelches the dynamic benefits of an open and accessible Internet and does not constitute reasonable network management.” In re: Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Application No. 08-183.
The FCC’s authority to regulate information services stems from its ancillary jurisdiction in Title I of the Communications Act; it gives the FCC authority to perform acts not contemplated in the statute that might be necessary to carry out the goals enumerated in the statute:

The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions. 47 USC §154(i)

In Comcast, the cable operator challenged the Commission’s order, on theory that the FCC can not regulate a cable modem information service under its ancillary jurisdiction of Title I. The Commission argued that these regulations are necessary in order to promote the policy goals of §230(b), “It is the policy of the United States… to promote the continued development of the Internet and other interactive computer services and other interactive media.”
The DC Circuit examines at whether the use of ancillary jurisdiction is permissible using a two-part test, “The Commission . . . may exercise ancillary jurisdiction only when two conditions are satisfied: (1) the Commission’s general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.”
The DC Circuit ruled that the authority in ancillary jurisdiction was not sufficient to be the sole authority for the FCC Order. “the Commission is seeking to use its ancillary authority to pursue a stand-alone policy objective, rather than to support its exercise of a specifically delegated power.” Ancillary jurisdiction can be exercised for reasons stemming from other parts of the Telecommunications Act, but does not provide justification in and of itself for agency action.
By specifically exempting cable modem service from Title II classification in 2002, is the Commission now prevented from enacting network neutrality regulations? What does this mean for network neutrality? One view is that the FCC lacks the authority to regulate broadband providers to protect the free flow of information across the internet. Or, it could be that the FCC’s decision to classify cable modem service as an information service should be reconsidered — the information service aspects of internet access can be distinguished from the common carriage aspects. Because what is network neutrality, if not a form of common carriage?
Perhaps the reason that so many people are concerned about this ruling and the issue of network neutrality in general, is because the internet is used more for communications than for accessing information. Like the dial tone for the 20th century, access to the internet is the fundamental baseline for communications in the 21st century.
Links with better analysis:
Susan Crawford, “Ancillary jurisdiction” has to be ancillary to something, “The next time the FCC wants to issue an Order or otherwise exercise power over high-speed Internet access providers, it had better be very clear about the source of its power, and it can’t rely on just its ‘necessary and proper’ clause in Title I.”
Jack Balkin, What’s Next For Network Neutrality?, “It’s possible that the FCC will simply see if it can get a reversal in the Supreme Court. That will take many more years of litigation. But the FCC might decide that the better solution is to retrace its steps, correct the mistake it made in 2002, and reassert Title II authority over broadband. Doing this would give the FCC the tools it needs to deal with the regulatory problems of the future.”
Law Librarian Blog, FCC Loses Comcast Appeal on Net Regulation “The most likely scenario is for Congress to specifically grant authority to the FCC when it considers legislation to implement the National Broadband Plan. Members of Congress have spoken out on the issue of network neutrality. Nonetheless, it’s going to take an intense lobbying effort by consumer and public interest groups to match the deep pockets of the ISPs and content providers who are against Internet regulation. It should be interesting to see how the players line up after this development.”
Public Knowledge: Public Knowledge Explains: The Comcast-Bittorrent Decision, “The real tragedy of today’s ruling is that this entire issue is a self-inflicted wound by the FCC. When it decided not to regulate broadband Internet under Title II (by placing cable broadband into Title I and moving DSL broadband from Title II to Title I), it turned its back on a specific delegation of powers from Congress. There would be no debate about ancillary authority if the FCC were to recognize that broadband Internet is a Title II ‘telecommunications’ service. The FCC has the statutory power it needs if it chooses to use it.”
Jenna Greene, National Law Journal, Uncertainty for FCC’s ‘Net Neutrality’ in Wake of Comcast Ruling, “In the wake of a stinging defeat in court, the Federal Communications Commission finds its ability to regulate the Internet in question, its signature ‘net neutrality’ initiative hanging by a thread. Now, the agency faces several unpalatable options.”
Economist Democracy in America Blog, Hey internet entrepreneurs, nuts to you “Ah, the joys of rent-seeking behaviour. The most likely result of allowing connectivity companies to charge discriminatory fees for different packets is what internet entrepreneur Alok Bhardwaj calls ‘extortionary pseudo-services”: fees to allow some of your packets to arrive ahead of others, or to allow your packets to arrive ahead of your neighbour’s. Another likely result is simple profit-seeking control over content delivery.”
Mehan Jayasuriya, Public Knowledge, The FCC Lacks the Authority to Protect Internet Users–Now What? “The roots of this problem can be traced back to 2001, when the FCC began a process that would effectively deregulate broadband Internet services, reclassifying broadband service as an ‘information service’ (Title I of the Communications Act), rather than a ‘telecommunications service’ (Title II). Though this may seem like a fine distinction it’s not: in reclassifying broadband services, the FCC lost the ability to take action against broadband ISPs that engage in ‘unjust’ or ‘unreasonable’ practices.”
Ryan Singel, Wired, Court Drives FCC Towards Nuclear Option to Regulate Broadband “A federal appeals court all but told the FCC Tuesday that it has no power to regulate the internet, putting large chunks of the much-lauded national broadband plan at risk. And the FCC has only itself to blame.”