Thursday, July 31, 2014

Congress screwed up net neutrality, not the FCC

This was a cutting-edge computer the last time Congress updated telecommunications law. Chris Corwin

The nation has been having essentially the same debate about who controls the Internet — and, more specifically, about whether and how the Federal Communications Commission should protect network neutrality — for close to a decade. People who have spent time in the trenches of that debate aren't just feeling a sense of deja vu. They're getting exhausted.

The cycle goes like this: the FCC comes up with a plan to regulate network neutrality. A telecom company (Comcast in 2008, Verizon in 2011) sues, arguing the FCC is exceeding its authority. The DC Circuit Appeals Court rules against the FCC. But the court also signals that a different approach might pass legal muster, sending the agency back to try again. The FCC's new Chairman, Tom Wheeler, is about to begin the cycle again, hoping the third time will be a charm.

Why has it proven so difficult for the commission to craft regulations the courts will accept? A big reason is that Congress hasn't overhauled telecommunications law since 1996. In 1996, Amazon.com was still just a book store, Larry and Sergey were still just Stanford grad students, and Justin Bieber was still just a toddler. It's little wonder that the FCC and the courts have found it so difficult to apply an 18-year-old law to the modern internet.

The 1996 Telecommunications Act prohibits the FCC from imposing common carrier regulations on "information services," which (according to the FCC) includes broadband internet access. The law says that information services can't be subject to common carrier regulations. In its January ruling, the court said that the FCC's 2010 net neutrality rules constituted common carrier regulation and was therefore illegal. But the court signaled that it would accept a revised set of rules that only prohibited discrimination if it was "commercially unreasonable."

Is that the result Congress intended? No one really knows. The term "network neutrality" hadn't been coined yet in 1996. Cable modems and fiber optic services like FiOS were still in the future. Unsurprisingly, Congress wasn't clear about how to handle concepts and technologies that didn't exist yet, so the courts have had to make up the rules as they went along.

A better way to resolve the controversy over the FCC's authority would be for Congress to pass a new telecommunications law that either clearly authorizes network neutrality regulations or clearly prohibits them. A clear statement from Congress authorizing network neutrality rules would make it easier for the FCC to write rules that pass muster with the courts. A clear statement prohibiting network neutrality regulations would end the decade-long uncertainty about how broadband networks would be regulated. Either way, the nation would be spared another decade of legal Calvinball as the courts struggle to interpret a statute that gets more outdated with each passing year.

But Congress hasn't been doing much lawmaking in recent years. So big-picture policy issues that ought to be resolved by our elected representatives are instead being hashed out by a convoluted process of rulemaking and judicial review.

This is another example of the phenomenon Vox's Ezra Klein has noted many times before: when Congress stops doing its job, the policymaking process doesn't stop. It just shifts to other parts of government that are less transparent, less effective, and less accountable to the public.

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