Wonkblog Gets It Wrong: The FCC's Shrinking Authority Isn't Enough to Save Net Neutrality

So by now you’ve probably read the news that a federal court just killed Net Neutrality. You’ve heard the responses from consumer groups, legal experts and tech reporters. They all recognize the fact that the court left the FCC with only one good option to keep the Internet open: reversing the Bush-era decisions that said Internet access networks were no longer classified as “common carriers” under the law.

But in the scrum of responses since Tuesday’s ruling, a strange claim has surfaced among D.C. Insiders. In their view the FCC can rely on Section 706 of the 1996 Telecom Act to protect the open Internet on a case-by-case basis. And such shrinking authority will be enough to stop the worst abuses.

This is wishful thinking. If you actually read the court’s ruling, you’ll see why the FCC truly has no ability to protect the open Internet without reclassifying broadband and treating access providers as the common carriers they obviously are.

Keep Calm and Carry On With Section 706

It’s clear there is a Beltway campaign to sell this argument. Look no further than yesterday’s guest editorial at Ezra Klein’s Wonkblog titled, “Calm down. The courts didn’t just end the open Internet.” In this piece, Professor John Blevins claims that all the experts and advocates sounding the alarm are “misinterpreting the rule.”

(And we don’t mean to pick on Professor Blevins alone; Penn’s Kevin Werbach, who headed up Obama’s FCC transition team, is pushing this plainly flawed read of the court decision, too.)

Blevins writes:

Yes, the D.C Circuit Court of Appeals vacated the heart of the FCC’s open Internet rules. But it also, more quietly, ruled that the FCC has authority to regulate broadband providers to protect Internet openness. …

How, you ask? Blevins again:

The court vacated only these particular rules, not the FCC’s ability to act in the future. Specifically, it concluded that the FCC could regulate Internet providers under a statute known as Section 706, which authorizes the FCC to take various steps to promote broadband deployment.

That last part is true. The FCC does have authority to use Section 706 to promote broadband deployment. This is all laid out primarily on pages 17 to 44 of the court’s decision.

But if you keep reading, the court clearly states why Section 706 authority won’t help the FCC prevent blocking or other abuses (you know, the precise authority it needs to “protect Internet openness”):

Even though section 706 grants the Commission authority to promote broadband deployment by regulating how broadband providers treat edge providers, the Commission may not … utilize that power in a manner that contravenes any specific prohibition contained in the Communications Act. ... We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers. Given the Commission’s still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” such treatment would run afoul of section 153(51).

Or put more simply, because the FCC says ISPs are not common carriers, it cannot impose common-carriage obligations on them using Section 706 authority.

The DNA of the Open Internet

For those who’ve followed this debate even at a cursory level, it’s pretty clear that the entire Net Neutrality debate has always been about restoring the built-in openness protections that are the DNA of common carriage (common carriage is the long-standing common law principle that requires certain businesses, such as airlines, railroads, parcel carriers, and telecommunications carriers to serve all customers without discrimination).

ISPs have always been thought of as common carriers. Indeed, the court here speaks of “the Commission’s long history of subjecting to common carrier regulation the entities that controlled the last-mile facilities over which end users accessed the Internet.” But this all changed when the Bush-era FCC decided in a series of decisions between 2002 and 2005 to gut its own authority over broadband transmissions by redefining broadband as an “information service” (like a website or app).

In Tuesday’s court ruling the judges aren’t saying that ISPs aren’t common carriers. What they are saying is that the FCC should stop pretending it can regulate them as common carriers without first reclassifying.

The FCC strenuously argued that its rules against ISP blocking or discriminating were not common-carriage obligations. The court mocked that claim. Then it said:

We must determine whether the requirements imposed by the Open Internet Order subject broadband providers to common carrier treatment. If they do, then given the manner in which the Commission has chosen to classify broadband providers, the regulations cannot stand.

Again, the court is saying, yes you have some authority under 706; but whatever you do with that authority, it cannot look like a common carrier obligation.

And what does the court think about prohibitions on discrimination?

We have little hesitation in concluding that the anti-discrimination obligation imposed on fixed broadband providers has “relegated [those providers] . . .to common carrier status.”

So, put bluntly, non-discrimination, which is the entire point of Net Neutrality, is considered a common carrier obligation – meaning that the FCC cannot protect it (before or after a violation) using Section 706 Authority. The court made a similar finding about the FCC’s rules against blocking websites and services.

You Can Do Anything. Well, Almost Anything …

In other words, the court is allowing the FCC to do anything except stop phone and cable companies from discriminating or blocking. That’s right: They can do anything except protect Net Neutrality.

So, when someone says, “the FCC could also use non-binding policy statements to give parties proper notice of their enforcement priorities” — or “the FCC will retain the credible threat of oversight of abusive behavior that threatens broadband deployment” — they are completely wrong and willfully ignoring what the Verizon v. FCC decision actually says.

Minutes after Tuesday’s decision came down, those of us working on the issue heard this “don’t sweat it” pitch. After digesting the ruling, and talking to dozens of experts, we were even more puzzled how anyone could reason that the court gave the FCC anything like authority for real Net Neutrality protections. 

The court did leave the agency some authority to require transparency, meaning the FCC could still force ISPs to disclose the fact that they are blocking — even though they couldn’t actually stop them from blocking or do anything about it.

The Only Sensible Option

The legal path forward for the FCC now is clear: reclassify and reverse the mistakes of its predecessors.

Sure, it will be a heavy political lift. But that’s OK. The decisions that the FCC faces are challenging, but that’s the reason Congress created the agency as an independent entity.

Ensuring all Americans enjoy unfettered access to the Internet is just too important to risk on half-baked legal theories and subpar reading comprehension. That’s the kind of approach that created the mess new FCC Chairman Tom Wheeler needs to clean up.

Chairman Wheeler may indeed want to wait for discriminatory practices to take hold before acting. But any threats from the FCC will be meaningless without authority to act.

That’s why the only sensible answer to this week’s ruling is to move as quickly as possible to reclaim that authority and restore common sense to how our communications networks are governed.