A Question Of Authority


Comments on the Federal Communications Commission’s proposed expansion and codification of network-neutrality rules flooded the agency last week against a new backdrop: the suggestion that the oral argument in the BitTorrent case could call into question the commission’s authority to regulate Internet access.

While Comcast argued in federal court that the case should be decided on more narrow grounds than a referendum on that issue, Internet regulatory authority — and how much of it the FCC has — was a topic of sufficient conversation from the three-judge panel to throw a scare into fans of network-neutrality regulation.

On his blog, Harold Feld, policy director for Public Knowledge, said the consensus was that the FCC’s showing in court was a “disaster” and that the judges could “strip the FCC of any authority to 'regulate the Internet.’ ”

“The court was insisting that there be some regulatory hook upon which the commission could demonstrate its authority, and during the argument and in its briefs, the FCC failed to establish that hook,” said veteran cable attorney Dan Brenner of Hogan & Hartson.

But the FCC is still operating on the assumption it has that power. “I remain confident the commission possesses the legal authority it needs,” FCC chairman Julius Genachowski said after the oral arguments. Some were suggesting last week that might require the commission reversing itself and classifying Internet access as a common-carrier service (Title II authority under the Communications Act) subject to access regs, rather than the information service (Title 1) it declared it to be in 2005, FCC spokeswoman Jen Howard declined to comment on whether the chairman was talking about authority under the the information service classification or reclassifying it. “The commission is vigorously defending its legal position,” she told Multichannel News, “and awaits a court decision.”

For its part, Public Knowledge wanted to make sure the option of reclassification was in the record. In its network neutrality filing, it told the commission that it felt it had the authority under Title I, but that if there were the slightest doubt, the option of going to Title II should be on the table.

The FCC was even going as far as China to point to support for an open Internet, with one top staffer last week pointing to administration statements about an open Internet in relation to the attacks from that country on Google.

Another route to FCC authority would be to get it expressly from Congress.

Bills to legislate net neutrality have so far failed to gain traction, but net neutrality fan and Senate Communications Subcommittee chairman John Kerry will be keeping an eye out for the court’s call, a spokesperson said: “It is an important case, and we are monitoring it closely to see what its implications are for FCC authority and what Congress needs to do to ensure the Internet remains open and vibrant.”