Reality Check: “Reclassifying” Broadband Would be Hard—Thank Goodness

I have a long opinion piece on CNet today, arguing that much of the talk of “reclassifying” or “relabeling” broadband Internet access to bring it under the FCC’s regulatory authority is just that—talk.

On April 6th, the D.C. Circuit Court of Appeals ruled definitively that the squishy doctrine of “ancillary jurisdiction” provides no authority for the FCC to impose its net neutrality rules on broadband Internet providers.

Law professors and paid advocates are doing a good job of convincing journalists who don’t understand the finer points of administrative law that all the FCC needs to undo that decision is the will to change the classification of broadband and…problem solved.

Not quite.  Those who argue the FCC can simply waive a regulatory wand and give itself all the jurisdiction it needs under Title II of the Communications Act are engaging in serious wishful thinking, or worse.

Yesterday, for example, The New York Times ran an editorial that suffered from a surfeit of fairy dust:

Fortunately, the commission has the tools to fix this problem. It can reverse the Bush administration’s predictably antiregulatory decision to define broadband Internet access as an information service, like Google or Amazon, over which it has little regulatory power. Instead, it can define broadband as a communications service, like a phone company, over which the commission has indisputable authority.

Where to begin?

First, it was the FCC, not the Bush administration, that convinced the U.S. Supreme Court that broadband is an (unregulated) information service.  And that was not a decision the agency made with Congressionally-delegated discretion.  The FCC didn’t “define” anything–it interpreted the statute.  That broadband is an “information service” reflected the FCC’s understanding of where Congress put broadband when it wrote the 1996 revisions to the Communications Act.

(Nothing in the definition of “information service” has anything to do with applications or web-based businesses such as Google or Amazon, by the way—that’s really left-field.  As I say in the CNet piece, “information services” mean data, as opposed to voice, communications.)

The Supreme Court agreed with the FCC’s interpretation in the Brand X case, and Congress has given not even a hint of a rumor of a private thought that they believed the agency and the courts got their intention wrong.

In Brand X and regulatory proceedings before and since, the FCC argued for treating broadband Internet access as an information service not because the agency thought that the best way to regulate.  They argued that broadband was outside any common carrier regulation because Congress said so in the 1996 Communications Act.  With the Brand X decision, all three branches of the government agreed with that understanding of the law.

Finally, there’s nothing in the statute that gives the agency the power to “define broadband as a communications service.”  (The actual term is “telecommunication”—nice fact-checking, New York Times.)  Agencies don’t get to define terms in their governing statute—Congress does.  If the FCC had the kind of authority the Times’ editors seem to think they have, the Communications Act would likely fail a constitutional challenge.  Congress cannot delegate lawmaking power to an agency of the executive branch.

Journalists aside, even the strongest proponents of the Title II panacea know in their hearts that the FCC can’t just wish themselves new powers without authorization from Congress.  But they also know that going back to Congress for that authority—the logical response to any finding that an agency lacks authority it believes it needs to meets its statutory objectives–is a dicey proposition.

There never has been sufficient support in Congress for net neutrality to get anything passed.  The math looks worse now than it did a few years ago, when Comcast was first found to have secretly slowed or blocked some users’ BitTorrent downloads.

Indeed, the NPRM came after Congress failed for years to pass any of the proposed neutrality laws.  The FCC argued that ancillary jurisdiction was enough authority to do it themselves, a gambit even pro-neutrality groups including the Electronic Frontier Foundation saw as more dangerous than the harm the agency was trying to abate.  Now the D.C. Circuit has signed on to that view, an entirely sensible limitation of agency power regardless of whether it is being exercised for good or perceived evil.

If the FCC wants to save its net neutrality proposal, it will have to go back to Congress one way or the other.  Or proceed, and face at least a decade of litigation that it will ultimately lose—at the waste of millions of taxpayer dollars that could go toward fulfilling the National Broadband Plan.

Sounds like an easy choice to me.  But some people want it to be even easier, despite those pesky facts that are getting in the way.