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
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”
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.