End the Furtiveness – FCC, Show Us Your New-and-Improved Net Neutrality Reasoning

by Mike Wendy on December 10, 2010

More than a week after its announcement, the FCC has yet to show its Draft Order to impose sweeping Net Neutrality regulations on the Internet.  No one but leakers and insiders has seen what’s in the Draft Order, which is reportedly based on the agency’s so-called “ancillary authority” similar to what was rejected this spring in the Comcast ruling. But who knows? According to some reports, we may not even see the Order until after the Commission votes on it on December 21st.

Where have we heard this before, Nancy?

So, there’re a lot of questions. More specifically, those interested want to know how the FCC can exert authority that was rejected in Comcast? Surprisingly, however, it’s that very same ruling which may shed light onto how the FCC can, or cannot, issue Net Neutrality regulations.

As per Comcast, the Court appears equivocally behind the notion that the FCC can use “ancillary authority” to regulate. But, in their view – and quite apart from the belief held by many that information services cannot ever be regulated by the Commission until Congress gives it that specific authority – the agency can only do it if it ties its authority to a “statutorily mandated responsibility” (which was not accomplished by the Commission in Comcast).  Stated differently, the agency’s Net Neutrality rules need to be “contingent upon specifically delegated powers under the Act.” Consequently, the task for the Commission is to find specific authority that its “ancillary” rules can reasonably advance.

What is the new post-Comcast formulation for the FCC?  Again, who knows?  Comm Daily reported the other day that the FCC has built its Hidden Order on specifically delegated powers in Title II and Title III authority, as well as in Section 706 of the Comm Act.

The Comcast Court seems to have rejected reliance on Section 706 to base the agency’s “ancillary authority,” stating that even the Commission recognizes, through a prior unchanged order, that Section 706 “does not constitute an independent grant of authority.”

But, the Court appears more amenable to Title III arguments (for broadcast regulations) to the extent there is a connection to specific mandated authority.  And, they also see Section 201 of the Act (common carrier regulation) as a possible angle for the Commission to hang its ancillary hat on.

Maybe the Commission is using these lines of authority to refashion its infirm Net Neutrality regulations?  Maybe not?  But here’s the real question.  For an agency that has prided itself on change and transparency, their furtive actions belie the spin.  In other words, why should there be any questions at all? Voicing some of this frustration, Commissioner Meredith Attwell Baker wants to know, too, recently exclaiming:

“If this agency is to operate in the most transparent and inclusive manner, we should proactively put out a copy of our draft Net Neutrality rules for comment today. The comment cycle can be short, but putting some sunshine on what we are doing would inform our process.”

And why else is she so upset?

“By doing it ourselves, there are no jurisdictional limits. We delegate to ourselves an unbounded regulatory power to adopt policies to promote a particular vision for the Internet. Congress is right to ask us to stand down,” she said.

To be honest, I’m in the Baker camp of thought on this.  Moreover, it’s clearly a question of congressional proportion, one that will significantly affect our economy, jobs and innovation going forward.  Thus, I believe it’s inappropriate for the Commission – even if all five commissioners agreed – to exercise its authority (and I’m being generous here) as it ostensibly proposes.

Congress should step in.  The FCC should butt out until then.  But if the Commission feels inclined to poke the eye of Americans, especially given the results of the midterm elections, they should at least show all of their cards so we can have an open – not closed – debate.

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