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A Neutral Ruling

Tuesday’s court ruling that the Federal Communications Commission lacks the authority to punish Comcast for messing with its customers’ Internet service has caused all sorts of wailing and gnashing of teeth. Headlines are screaming that the ruling means the end of net neutrality, “the day the Internet lost,” a huge comeuppance for FCC Chair Julius Genachowski, a huge defeat for the Obama administration, etc.

Geez, guys, get a grip.

First of all, understand that the case was about an FCC ruling that was made during the Bush administration, in August 2008. As several of the more informed and rational reports have pointed out, this decision wasn’t unexpected, nor is it necessarily a bad thing. Fundamentally, it must be stressed that the court did not say, or even infer, that net neutrality was a bad thing, or that what Comcast was doing to its customers a few years ago (it was interrupting service to customers it suspected were using file-sharing programs) was a good thing. The court was merely holding something that many commentators have been saying for years: that the FCC overstepped its statutory authority—that it was trying to regulate something it did not have the legal right to regulate.

Which doesn’t mean the death of anything. What it means is that the FCC took things a little out of order.

You see, the FCC is a creature of statute, and its own regulations, like every other regulatory body out there, are kept on a very tight leash. For good reason: FCC commissioners and staff aren’t elected officials, so they don’t answer to voters, just to the statutes and regulations. And when they step outside of the statutes and regulations, the courts must step up and reel them in. This is called order; this is a government of laws, not people, as it should be.

What happens all the time is that issues of process and authority always come before the substantive issues of right versus wrong, to insure that the FCC isn’t overstepping its bounds. And that’s what happened here.

I haven’t had the time or inclination to dig into the court’s decision (rulings on administrative decisions are typically incredibly dense, dry, and boring), but this is what seems to have happened in the most basic and elementary terms (I’m running at the edges of my understanding here, so if you know more about this than me and want to clarify or correct me, I’d be much obliged):

The FCC exercises broad authority over what it deems “common carriers” of telecommunications services—traditionally, telephone, radio and television services—based on the fact that these services use public facilities (bandwidth, streets, etc.), the fact that these services are not always naturally prone to competitive pressures that would keep prices down and quality high, and the fact that these services provide things that are necessities to modern life. What the exact nature of this “broad authority” should be is an ever-changing, constantly debated issue. The FCC has never exercised this kind of broad authority over the Internet, instead deeming it to be a lightly regulated communications service.

Which, in many ways, is a good thing. In the Bush years, we heard lots of calls from the Christianitas legislators that the FCC should regulate the content of what goes out over the Internet, like it does for network television, or like the governments do in places like China or Cuba. Imagine what that would be like. These calls were successfully resisted, Internet remained “lightly regulated,” and the content of the Internet remains largely unencumbered by any governmental intrusion.

Lately, as broadband Internet service has been touted as something like a basic human right, or at least a cornerstone of modern civilized society, there have been increasing calls for the FCC to take greater responsibility in making broadband universally available to all (like it does with basic telephone service, or like FERC does with electricity) and to make sure that the Internet stays user-neutral—that is, that Internet providers can’t discriminate among users for commercial reasons.

And yesterday the court ruled simply that the FCC can’t do this so long as it deems the Internet a “lightly regulated” service.

Obviously, an act of Congress would fix this. Obviously, getting anything through a Congress that’s been hijacked by a minority of knuckle-dragging racist partisans is a tall order. Some have observed that the FCC, under existing law, can simply reclassify the Internet as a “highly regulated common carrier service” and then do what it wants to do.

Which sounds like sleight-of-hand to me, but if it’s legal and legit, considering the stakes, hey, why not? The dogs will bark, then the caravan will move on.

—Paul Rapp

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