The question on the table is by what authority does the FCC act? Yesterday the FCC issued its first blast on Net Neutrality. They state (as usual the references are key):
"B. Our Authority to Prescribe Rules Implementing Federal Internet Policy
83. Consistent with the Comcast Network Management Practices Order, we may exercise jurisdiction under the Act to regulate the network practices of facilities-based broadband Internet access service providers. We have ancillary jurisdiction over matters not directly addressed in the Act when the subject matter falls within the agency’s general statutory grant of jurisdiction and the regulation is “reasonably ancillary to the effective performance of the Commission’s various responsibilities.”195 That test is met with respect to broadband Internet access service.196
84. As explained in the Comcast Network Management Practices Order, we believe that exercising ancillary authority over facilities-based Internet access will “promote the objectives for which the Commission has been [specifically] assigned jurisdiction” and “further the achievement of . . . [legitimate] regulatory goals.”197 The proposed rules we enunciate here will, we believe, advance the federal Internet policy set forth by Congress in section 230(b) as well as the broadband goals that section 706(a) of the Telecommunications Act of 1996 charges the Commission with achieving.198 Section 201(b), moreover, gives the Commission specific authority “to prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of th[e] Act.”199
85. Voice and video services are increasingly delivered over the Internet, in actual or
potential competition with voice and video offerings of companies that provide broadband Internet access. This growing interrelationship with voice and video services that the Commission has traditionally regulated pursuant to express statutory obligations and its general public interest mandate further supports the Commission’s consideration of regulatory requirements for the provision of broadband Internet access service, and its ancillary jurisdiction to establish appropriate rules.
86. With respect to Internet access via spectrum-based facilities, we have additional authority
pursuant to Title III of the Communications Act.200 We have recognized previously that the spectrum allocation and licensing provisions of Title III and the Commission’s rules continue to apply to wireless broadband Internet access services because these services use radio spectrum.201 We have relied upon Title III authority in the past to regulate services provided by wireless carriers.202
87. We invite comment on our view that we have jurisdiction over broadband Internet access
service sufficient to adopt and enforce the proposed rules, or other rules that commenters propose."
where:
"195 United States v. Southwestern Cable Co., 392 U.S. 157, 172–73 (1968); accord United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972).
196 Comcast Network Management Practices Order, 23 FCC Rcd at 13033–44, paras. 12–28; see also Brief for the FCC and the United States in Comcast v. FCC, No. 08-1291, at 25–50 (filed Sept. 21, 2009), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293573A1.pdf.
197 Midwest Video I, 406 U.S. at 667.
198 See 47 U.S.C. §§ 230(b), 1302(a).
199 47 U.S.C. § 201(b); AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 378 (“We think that the grant in § 201(b) means what it says: The FCC has rulemaking authority to carry out the ‘provisions of this Act.’”); see also Alliance for Community Media v. FCC, 529 F.3d 763, 772–74 (6th Cir. 2008) (holding that section 201(b) gives FCC authority to issue rules implementing all portions of the Communications Act), cert. denied, 129 S. Ct. 2821 (2009).
200 Title III of the Communications Act (47 U.S.C. §§ 301–399B) contains provisions relating to use of the radio spectrum, including the Commission's broad authority over spectrum allocation (see, e.g., 47 U.S.C. § 303) and licensing (see, e.g., 47 U.S.C. §§ 301, 307, 308), including use of auctions (47 U.S.C. § 309(i)).
201 Wireless Broadband Classification Order, 22 FCC Rcd at 5914–15.
202 See, e.g., Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Services, CC Docket No. 94-54, Memorandum Opinion and Order on Reconsideration, 14 FCC Rcd 16340, 16352–53, para. 27 (1999)."
We believe that this section of the report will have the greatest impact because the FCC most likely has little if any authority and the record speaks for itself. This will result in endless and costly litigation the costs of which will go to the costs of broadband.
The basic statement of the FCC is as follows:
"92. Specifically, we propose that all providers of broadband Internet access service must
comply with the following four rules:
1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.
2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.
3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.
4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers."
The new element of "subject to reasonable network management" is the operative phrase. This may actually send Net Neutrality down the drain if this term is interpreted too loosely.
Now the FCC defines this key term as:
"135. Here we discuss the proposed definition of reasonable network management:
Reasonable network management consists of: (a) reasonable practices employed by a provider of broadband Internet access service to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices."
The last three elements are most likely just fine. No one wants junk, depending what junk is. The White House may deem anything from FOX as junk, but alas let the children throw sand in the sand box. The first is key:
(i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns
This is the major concern. Who determines what is congestion, or what is a quality of service. These are not objective criteria. In fact we believe, as one who deployed one of the first VOIP and broadband nets globally, that this is utter nonsense. I wrote about QoS in 1998 and presented it in Italy and the bottom line was that I could not generalize it. Things have not gotten better. Thus the FCC by allowing this operative phrase has distorted the whole concept of net neutrality. We wrote a detailed paper on this a few years ago and I believe the position still stands:
1. The FCC has no statutory authority.
2. Congress must legislate to give it the authority
3. "Common Carriage" principles should apply but not Common Carriage regulation
The problem is the number of lawyers involved and the paucity of people who have really done anything!
"B. Our Authority to Prescribe Rules Implementing Federal Internet Policy
83. Consistent with the Comcast Network Management Practices Order, we may exercise jurisdiction under the Act to regulate the network practices of facilities-based broadband Internet access service providers. We have ancillary jurisdiction over matters not directly addressed in the Act when the subject matter falls within the agency’s general statutory grant of jurisdiction and the regulation is “reasonably ancillary to the effective performance of the Commission’s various responsibilities.”195 That test is met with respect to broadband Internet access service.196
84. As explained in the Comcast Network Management Practices Order, we believe that exercising ancillary authority over facilities-based Internet access will “promote the objectives for which the Commission has been [specifically] assigned jurisdiction” and “further the achievement of . . . [legitimate] regulatory goals.”197 The proposed rules we enunciate here will, we believe, advance the federal Internet policy set forth by Congress in section 230(b) as well as the broadband goals that section 706(a) of the Telecommunications Act of 1996 charges the Commission with achieving.198 Section 201(b), moreover, gives the Commission specific authority “to prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of th[e] Act.”199
85. Voice and video services are increasingly delivered over the Internet, in actual or
potential competition with voice and video offerings of companies that provide broadband Internet access. This growing interrelationship with voice and video services that the Commission has traditionally regulated pursuant to express statutory obligations and its general public interest mandate further supports the Commission’s consideration of regulatory requirements for the provision of broadband Internet access service, and its ancillary jurisdiction to establish appropriate rules.
86. With respect to Internet access via spectrum-based facilities, we have additional authority
pursuant to Title III of the Communications Act.200 We have recognized previously that the spectrum allocation and licensing provisions of Title III and the Commission’s rules continue to apply to wireless broadband Internet access services because these services use radio spectrum.201 We have relied upon Title III authority in the past to regulate services provided by wireless carriers.202
87. We invite comment on our view that we have jurisdiction over broadband Internet access
service sufficient to adopt and enforce the proposed rules, or other rules that commenters propose."
where:
"195 United States v. Southwestern Cable Co., 392 U.S. 157, 172–73 (1968); accord United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972).
196 Comcast Network Management Practices Order, 23 FCC Rcd at 13033–44, paras. 12–28; see also Brief for the FCC and the United States in Comcast v. FCC, No. 08-1291, at 25–50 (filed Sept. 21, 2009), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293573A1.pdf.
197 Midwest Video I, 406 U.S. at 667.
198 See 47 U.S.C. §§ 230(b), 1302(a).
199 47 U.S.C. § 201(b); AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 378 (“We think that the grant in § 201(b) means what it says: The FCC has rulemaking authority to carry out the ‘provisions of this Act.’”); see also Alliance for Community Media v. FCC, 529 F.3d 763, 772–74 (6th Cir. 2008) (holding that section 201(b) gives FCC authority to issue rules implementing all portions of the Communications Act), cert. denied, 129 S. Ct. 2821 (2009).
200 Title III of the Communications Act (47 U.S.C. §§ 301–399B) contains provisions relating to use of the radio spectrum, including the Commission's broad authority over spectrum allocation (see, e.g., 47 U.S.C. § 303) and licensing (see, e.g., 47 U.S.C. §§ 301, 307, 308), including use of auctions (47 U.S.C. § 309(i)).
201 Wireless Broadband Classification Order, 22 FCC Rcd at 5914–15.
202 See, e.g., Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Services, CC Docket No. 94-54, Memorandum Opinion and Order on Reconsideration, 14 FCC Rcd 16340, 16352–53, para. 27 (1999)."
We believe that this section of the report will have the greatest impact because the FCC most likely has little if any authority and the record speaks for itself. This will result in endless and costly litigation the costs of which will go to the costs of broadband.
The basic statement of the FCC is as follows:
"92. Specifically, we propose that all providers of broadband Internet access service must
comply with the following four rules:
1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.
2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.
3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.
4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers."
The new element of "subject to reasonable network management" is the operative phrase. This may actually send Net Neutrality down the drain if this term is interpreted too loosely.
Now the FCC defines this key term as:
"135. Here we discuss the proposed definition of reasonable network management:
Reasonable network management consists of: (a) reasonable practices employed by a provider of broadband Internet access service to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices."
The last three elements are most likely just fine. No one wants junk, depending what junk is. The White House may deem anything from FOX as junk, but alas let the children throw sand in the sand box. The first is key:
(i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns
This is the major concern. Who determines what is congestion, or what is a quality of service. These are not objective criteria. In fact we believe, as one who deployed one of the first VOIP and broadband nets globally, that this is utter nonsense. I wrote about QoS in 1998 and presented it in Italy and the bottom line was that I could not generalize it. Things have not gotten better. Thus the FCC by allowing this operative phrase has distorted the whole concept of net neutrality. We wrote a detailed paper on this a few years ago and I believe the position still stands:
1. The FCC has no statutory authority.
2. Congress must legislate to give it the authority
3. "Common Carriage" principles should apply but not Common Carriage regulation
The problem is the number of lawyers involved and the paucity of people who have really done anything!
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