The FCC Lacks the Authority to Protect Internet Users — Now What?
The FCC Lacks the Authority to Protect Internet Users — Now What?
The FCC Lacks the Authority to Protect Internet Users — Now What?

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    Ever since the D.C. Circuit Court of Appeals ruled in favor of Comcast in the Comcast/BitTorrent case this morning, the tech policy blogosphere has been scrambling to unpack the court’s decision and figure out what it means for the Federal Communications Commission (FCC), ISPs, public interest groups and various other stakeholders.

    But what about the rest of us?

    Who will protect the Internet user whose connection is blocked, filtered or throttled? Who will stop ISPs from blocking services that compete with their own offerings (VoIP or Internet video services, for example) or from instituting separate pricing tiers for those who wish to use their connection for gaming or video streaming? Who will ensure that tomorrow’s innovative web service can reach users without being blocked or degraded? The answer to these questions might surprise you: no one.

    How did we get here? The roots of this problem can be traced back to 2001, when the FCC began a process that would effectively deregulate broadband Internet services, reclassifying broadband service as an “information service” (Title I of the Communications Act), rather than a “telecommunications service” (Title II). Though this may seem like a fine distinction it’s not: in reclassifying broadband services, the FCC lost the ability to take action against broadband ISPs that engage in “unjust” or “unreasonable” practices. As you can imagine, PK and other public interest groups opposed the FCC during this process but the agency told us not to worry: they had a trick up their sleeve called “ancillary authority”.

    Ancillary authority is a provision in the law that allows an agency like the FCC to address matters that are related to the areas that it regulates, even if that agency does not have the explicit authority to do so. The FCC’s ancillary authority has been tested in the past in other contexts but until today, had not been addressed by a court with regard to broadband.

    In 2007, we partnered with Free Press to file a complaint with the FCC regarding Comcast’s blocking of traffic that used the BitTorrent file transfer protocol. The FCC agreed that Comcast’s blocking of this traffic violated its four open Internet principles and in 2008, ordered the ISP to cut it out (PDF). Comcast disagreed with this ruling and appealed to the United States Court of Appeals for the District of Columbia Circuit. Today, that court decided that the FCC’s ancillary authority was not sufficient for it to regulate the actions of broadband service providers and as such, overturned the FCC’s decision in the Comcast/BitTorrent case.

    So what now? How will the FCC protect Internet users and innovators, let alone implement the provisions in its ambitious National Broadband Plan? The FCC has a few options in front of it, the best of which is to re-reclassify broadband services under Title II of the Communications Act. If broadband services are placed under Title II, the FCC will have clear authority to regulate those services and will be able to prevent ISPs from discriminating against certain types of traffic online. The FCC could also ask Congress to grant it explicit authority to regulate broadband services, though this would be a longer, more difficult and more tenuous process.

    But what are we supposed to do in the meantime? Mike Masnick over at TechDirt has suggested that the Federal Trade Commission (FTC) should step in and deliver a slap on the wrist to Comcast, “for misleading its customers about what type of service they were getting, and what the limitations were on those services”. But unlike the FCC, the FTC is ill-suited to regulate communications services–its authority here would likely stem from a claim of false advertising. Sure, the FTC could require Comcast to fully disclose its business practices but that would be cold comfort for the 85 percent 20 to 30 percent of Americans who have no choice when it comes to broadband service providers. If Comcast is the only high-speed service provider in your neighborhood–as they are in mine–your choice would be between using the Internet on Comcast’s terms or not using the Internet at all.

    With any luck, the FCC will act swiftly to resolve this matter, thereby ensuring that it has the authority to protect Internet users’ privacy, innovation and your ability to connect to the websites and services of your choosing. But what if you’re concerned about an ISP blocking your bits in the meantime? You might want to switch to dial-up. After all, there are plenty of dial-up ISPs to choose from, it’s easy to switch between them and your right to use them is protected by the FCC, since you connect to them using your telephone line–a Title II service.