Net Neutrality and the Inconvenient Constitution

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I appeared this afternoon on the inaugural edition of TechCrunch TV to talk about–what else?–Net Neutrality.

Multiple media sources are now reporting that the FCC, contrary to reports from earlier this week, has decided to go ahead with an effort to change the classification of broadband Internet service from a Title I “information service” to a Title II “telecommunications service,” if only to salvage the proposed rulemaking on the open and transparent Internet. (See stories on The Wall Street Journal and The Washington Post as well as Ars Technica.)

Those of us who aren’t on the FCC’s official leak list will have to wait with the rest of the rabble to get a look at just how the FCC proposes to effect this radical change in communications law. Will it apply to all broadband Internet–including cable, fiber, DSL, satellite, wireless and broadband over power lines? Will the FCC propose to regulate only as much as needed to get the jurisdiction the D.C. Circuit says it doesn’t have under Title I to implement the NPRM, or will they throw in some additional provisions to achieve other goals–such as the reform of the Universal Service Fund? Will state and local regulators get to share in the fun of telling ISPs how best to run their business?

And, what about Naomi? (A cultural reference only Jim Harper will get.)

The TechCrunch discussion included Richard Bennett of the Information Technology and Innovation Foundation, Gigi Sohn of Public Knowledge and Mike Masnick, CEO of TechDirt. Andrew Keen, author of “The Cult of the Amateur,” moderated.

It’s not Just a Good Idea, it’s the Law

Let’s leave the merits of the NPRM and of regulating ISPs as telephone companies aside for the moment. (But if you need a reminder on the merits, see “Net Neutrality Tail Wags Broadband Dog.”) Let’s instead talk about the law.

With only thirty minutes to cover years worth of history, it wasn’t possible to get a decent airing of the most important issues. Gigi Sohn and I nearly derailed the conversation with a preview of the oral arguments in the inevitable D.C. Circuit case that will challenge whatever the FCC actually does here. I argued, as I have explained in more detail elsewhere including a recent CNET piece, that aside from the nutty policy implications of treating ISPs as if they were AT&T in the 1930’s running a single phone system including consumer-leased black rotary dial phones, that the agency simply doesn’t have the legal authority to decide what is and what is not an “information service.”

Gigi disagreed, saying that an agency can “change its mind–can change its interpretation–of its organic statute so long as it gives a reasoned explanation.” She was emphatic about this point. (Public Knowledge was equally emphatic in its belief that the agency could enforce neutrality principles under Title I–an argument thoroughly rejected by the D.C. Circuit in Comcast v. FCC.)

Lord help us if we lived in a country where that was true. Unelected regulators across the federal alphabet soup of agencies would simply decide when it was time for the law to be rewritten and, rather than seeking changes from Congress, would expediently do it themselves. Prosecutor, judge, and jury all in one, subject to the lightest possible form of judicial review.

Fortunately, we do not live in such a country.

Even if agencies do have discretion to reconsider whether or how they apply the authority given to them by Congress years later, that discretion would have no bearing on an FCC effort to change the definition of telecommunications services to include broadband Internet access.

Delegated Powers vs. Statutory Interpretation

Why not? Congress did not delegate to the FCC the power to decide what was and was not an information service. It defined that term–as well as defining telecommunications service–in the 1996 Communications Act. Slightly different terminology had applied for decades, but the basic distinction was always between phone service (the highly regulated monopoly of the former AT&T, broken up in 1984) and data service (unregulated other than to keep AT&T out of the business, again until the breakup).

Which is to say that Congress gave no discretion to the FCC to make up its mind–or to change its mind. Congress decided where broadband Internet belonged in the regulatory landscape. Congress decided it belonged under Title I–information services.

But don’t take my word for it. The FCC read its “organic statute” the same way. It argued that interpretation to the U.S. Supreme Court in the 2005 Brand X case, and won. The Supreme Court agreed that the definitions were ambiguous, and agreed that the FCC’s interpretation of them was reasonable.

So by 2005, all three branches of the government–executive, legislative, and judicial–were unanimous in their agreement that “information service” included broadband Internet, at least as it applied to cable offerings. DSL was later added to the list. Internet over wireless, satellite, fiber optic cable and broadband over power lines has always been assumed to be an information service. If we ever figure out how to send packets through water pipes, that will be an information service too.

This was not a determination or a decision or a discretionary act of the FCC. It was plain and simple statutory interpretation.

Changed circumstances–assuming they have changed in a way that would support a decision to regulate ISPs more and not less–are irrelevant to an agency’s power to change definitions in the law governing their jurisdiction. Agencies have no such power. Only Congress can change the definitions, or eliminate them, or give the agency new authority to regulate new activities.

In other words, the statute defining what an agency can and cannot do cannot be rewritten by the agency, even with the best of intentions and the most reasonable of explanations. Supreme Court decisions cannot be overturned by agencies when those decisions have outlived their usefulness. The Chevron Doctrine, which the Court applied in Brand X to give deference to the FCC’s interpretation of ambiguities in the definitions, is not a blank check to go back and forth at will, substituting different–albeit reasonable–interpretations whenever taking the opposite view suits the agency’s changing agenda.

(For more of the legal details on administrative law than even I want to know, see Seth Waxman’s clear-headed filing on behalf of the U.S. Telecom Association.)

Public Knowledge argued for Chevron deference in Comcast v. FCC. The D.C. Circuit rejected that argument. And for good reason. This well-meaning but ultimately fantasyland view would run afoul of the most basic doctrines of regulatory law, and would, if seriously contended by the regulators, return us to the early New Deal era, when the courts ruled unconstitutional the heart of FDR’s plans as illegal delegations of lawmaking powers from the legislative to the executive branch.

If Only There Were Some Way to, You Know, Change the Law

If Congress believes that the FCC should regulate ISPs with a heavier hand than Title I allows, Congress is free to rewrite the Communications Act once again. (But of course there are limits even to what Congress can do. Remember that legislators have three times attempted to give the FCC a mandate to regulate Internet content and police it for indecency much as the agency still–with Victorian relish–polices broadcast TV and radio. Twice the U.S. Supreme Court voided the law on First Amendment grounds, and the third time scaled it back to nearly nothing.)

All the panelists agreed that in a perfect world Congress would decide when it was time for the FCC to take control of ISPs. But we don’t live in a perfect world. Congress is busy. We need to save the Internet right now, Public Knowledge and Free Press earnestly believe, and if the courts and Congress won’t give the FCC the authority to do it, well, the agency will heroically rise to the challenge and do it themselves.

There’s just one problem. While we don’t live in a perfect world, we in the U.S. do live in one governed by the Constitution. Even when that document seems inconveniently rigid, the framers get the last word.

It might take a lot of expensive litigation (half of which will be paid for by taxpayers), but in the end that’s how this conversation will end.