The Federal Communications Commission let the rule of law go by the wayside as it came up with a novel approach to resolving a complaint against Comcast’s broadband Internet service.
That’s the conclusion of “Undue Process at the FCC,” an article in the summer edition of the Journal of Communications & Law Policy at Catholic University’s Columbus School of Law.
The article, penned by Barbara Esbin and Adam Marcus of the Progress and Freedom Foundation, asserts that in its order finding that Comcast’s peer-to-peer management practices “unduly interfered” with users’ access to the Internet, the FCC effectively “imposed a broad nondiscrimination requirement on all Internet-service providers” by cobbling together at least seven portions of the Communications Act to find ancillary authority.
The FCC adopted four Internet-openness principles at the same time it freed phone and cable Internet access services from common carrier-style mandatory Internet-access regulations. But at the same time, it said the four items were principles, not enforceable rules.
In the Comcast decision, the FCC began the process of establishing case-by-case precedent by which it said it would enforce those principles.
Comcast has since filed suit against the decision in the U.S. Court of Appeals for the D.C. Circuit, taking aim at that process as procedurally flawed.
Esbin and Marcus argue that it is likely the court will find the Comcast order “beyond the agency’s delegated authority.”
The authors argued that the FCC has essentially tried to transform the guidelines into rules by “mystically” housing the complaint against Comcast in a notice of inquiry into broader industry practices. They said the FCC omitted the notice of proposed rulemaking that should have come before the agency essentially established rules via the Comcast complaint process.
“The FCC created new procedures and applied them against Comcast, establishing a new framework for adjudicating similar complaints in the future,” they wrote. “As if that were not enough, the FCC has essentially deputized the complainant, Free Press, and the rest of the populace of the nation to keep an eye on Comcast and report any new violations.”
“PFF and the cable industry made these same arguments during the Comcast proceeding,” Free Press policy director Ben Scott said. “We’re confident the D.C. Circuit will agree with the FCC’s decision that there is ample statutory authority for the order.”