When the FCC was considering sanctions against Comcast for “unreasonable network management practices” based on its Internet Policy Statement, Jerry Ellig and I filed comments in the proceeding, and subsequently published a law review article, that among other things makes the case that the FCC had no authority to do anything of the kind. First, policy statements are not rules, and can’t be enforced as such. Second, even if it were, the FCC has no statutory authority to regulate the internet in such a specific way. We wrote at the time [PDF]:
As a foundation for its findings, the Internet Policy Statement cites Section 230(b) of the Communications Act, which states that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet” and “to promote the continued development of the Internet.”It also cites Section 706(a), which charges the Commission with “encourag[ing] the deployment on a reasonable and timely basis of [broadband] to all Americans.” The principles outlined in the Internet Policy Statement may well be consistent with this language in the Act, but they are not an enforceable interpretation of the Act. Not only is the statutory language that is conceivably being interpreted here only a statement of policy itself, and not an enforceable positive statement of law, but the principles outlined in the Internet Policy Statement add new substantive requirements that were not contemplated by the drafters of the Act. While the Commission may have the authority under its Title I ancillary jurisdiction to mandate specific nondiscrimination rules, it must issue any such regulation subject to the APA’s legislative requirement of notice and comment.
Well, it’s still a little early to say, “I told you so,” but the D.C. Circuit heard Comcast’s appeal last week, and all news accounts report that the judges were not all impressed with the FCC’s arguments. According to the Wall Street Journal, “Judge A. Raymond Randolph repeatedly said the legal provisions cited by the FCC were mere policy statements that by themselves can’t justify the commission’s action. ‘You have yet to identify a specific statute,’ he said.”
Good judges like to rule on as narrow grounds as possible, and in this case that would be ruling that a policy statement is not enforceable. However, it would be something if this case brought into question the FCC’s alleged “ancillary jurisdiction” to regulate the internet. It would certainly be troubling for the current net neutrality proceeding.
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