Public Knowledge Warns FCC About Constant Challenges To Broadband Authority and An Open Internet
Public Knowledge Warns FCC About Constant Challenges To Broadband Authority and An Open Internet
Public Knowledge Warns FCC About Constant Challenges To Broadband Authority and An Open Internet

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    It would be “at best challenging and at worst reckless” for the Federal Communications Commission (FCC) to make broadband policy based on the legal framework that was largely struck down earlier this month by the U.S. Appeals Court, Public Knowledge (PK) told the Commission Monday.

    The text of the comments is here.

    In reply comments in the Commission’s proceeding to establish rules for an open Internet, Public Knowledge said that unless the FCC reverses past decisions that took Internet access out from under the traditional regulatory structure, the Commission “can expect to be challenged at every turn,” telling the FCC that, “if the FCC fails to ground its legal authority more firmly going forward, it can expect challenges to its authority each time it tries to update its regulations to reflect the new broadband-centric reality. The public deserves better than this legal brinksmanship.”

    Those challenges will come even from companies that may say they support the FCC’s goals and the FCC’s regulatory structure of using Title I of the Communications Act, Public Knowledge said.  Comcast, for example, has said it “remains committed” to working with the FCC on Open Internet rules, has also said that no regulations could be lawfully applied to broadband carriers under Title I general authority if those rules have “hallmarks” of traditional Title II common carrier regulation, PK noted.  The National Cable and Telecommunications Association (NCTA) has issued a similar warning on the central issue of universal service support, when it said that, “depending on the details of the specific program,” the Commission may or may not have authority to carry out a Universal Service program based on broadband.  As PK put it:  “In NCTA’s view, the FCC only has the authority to promote Universal Service programs it agrees with.”

    Also in its filing, PK disputed the idea that reclassifying broadband Internet access would make it a public utility, or would subject carriers to heavy-handed regulation.  “The Commission has the authority to exempt carriers from unnecessary regulations, contrary to the ‘all or nothing’ arguments offered by some carriers,” PK said.

    PK also argued that an Open Internet would not violate the First Amendment rights of carriers, as some companies argue, and that the rules would not constitute a “taking” under the Fifth Amendment.

    In addition, PK told the Commission that copyright enforcement is outside the FCC’s authority and would lead to blocking of lawful content and other problems. PK said: “The inherent difficulties in making these decisions could easily lead to discriminatory or anticompetitive blocking or degradation masquerading as efforts to police infringement. Even good faith efforts to combat infringement can have unintended anticompetitive or discriminatory effects which, regardless of their intent, have negative effects on access to content, applications, and the Internet generally.”




    Members of the media may contact Communications Director Shiva Stella with inquiries, interview requests, or to join the Public Knowledge press list at or 405-249-9435.