Kerry on FCC Court Case

Kerry on FCC Court Case

WASHINGTON, D.C. – Senator John Kerry (D-Mass.), Chairman of the Commerce Subcommittee on Communications, Technology, and the Internet, today released a statement following a decision from the U.S. Court of Appeals for the District of Columbia that the Federal Communications Commission (FCC) lacks the authority to oversee internet traffic restrictions by internet providers like Comcast.

“This is a history-making decision. It appears to vacate the authority of the FCC to conduct oversight over broadband service and the telephone and cable giants that own the wires,” said Sen. Kerry. “I am not advocating that the FCC reclassify broadband services as a result of this decision, but I absolutely believe they maintain that legal authority and it would be entirely consistent with the history of communications law in our country if they did. In fact, in cases involving FCC classification of services, the Supreme Court has always deferred to the agency. It is likely to continue doing so if the agency reversed and provided a strong rationale for updating the Bush era classification of broadband service.

“Broadband was in its nascent stages when the Bush Administration established its policy, but is now an integral part of our economy, the way we communicate, and our daily lives. Without oversight, market giants would be free to do as they wish even if their actions hindered the free flow of information, treated consumers unfairly, or discriminated against content creators. In the long run, we may need a new legal and regulatory framework for broadband, especially if reclassifying broadband as a telecommunications service proves too difficult to administer. I am willing to work with all interested parties on the construction of that framework. But the FCC can and must continue the role it has always played protecting consumers and encouraging the deployment of networks through the development of every communications technology, from the telephone to radio and television to wireless communications.

“I was a member of the Senate Commerce Committee during consideration of the Telecommunications Act of 1996. I know the Congress did not intend for cable and telephone broadband internet service providers to fall outside the authority of the FCC to protect consumers, protect against discrimination, provide public safety officials with priority access to service, ensure that people with disabilities are given consideration, or ensure that modern communications are available to everyone in America.”

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What does this mean for the fight over network neutrality?

Less than you might expect. The issues in the case are quite technical, and don't go to the merits of whether network neutrality is good or bad policy or promotes or inhibits freedom of speech or innovation. Instead, the decision simply says that the FCC's jurisdiction to issue rules ancillary to its general authority to regulate telecommunications is not sufficiently broad to include network neutrality rules for broadband providers.

What happens next? There are at least three possibilities for proponents of network neutrality (and three reasons why Comcast and the rest of the broadband industry shouldn't pop the champagne corks just yet).

1. The Supreme Court overturns the D.C. Circuit on the scope of the FCC's ancillary jurisdiction, and the FCC goes on to fight the other issues in the case. One reason why the Supreme Court might reverse is because of its Brand X decision, in which it upheld the FCC's decision in its 2002 Cable Modem Order to treat broadband providers not as common carriers subject to regulation under Title II of the Federal Communications Act, but rather as "information services" which would be subject to much less stringent regulations. Brand X was premised on the assumption that the FCC might still regulate broadband providers, even if they were classified as "information services" and not subject to the more stringent requirements of Title II. The D.C. Circuit has declared these parts of Brand X dicta or read them very narrowly. The Supreme Court might disagree.

2. Congress might amend the Federal Communications Act to create a new source of jurisdiction to regulate broadband. To do this one would need at least 60 votes in the Senate. Good luck with that. Comcast and other broadband providers probably could exert influence in both parties to prevent broad new regulatory authority to the FCC.

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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.

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