Comcast Decision May Not Have Sweeping Implications, Walker Says

“The most the D.C. Circuit could hold is that the agency erred in adopting the Comcast order,” Walker said. “It is not accurate to say that all FCC authority over the Internet will be gone. It will mean that particular rules failed to withstand judicial review under the fact-specific ancillary authority test.”

Comcast challenged in a case argued in January an FCC finding that it had violated the commission’s net neutrality principles in blocking peer-to-peer file transfers covered in the Comcast-BitTorrent order. The FCC shouldn’t “throw the baby out with the bath water” and rush to reclassify how broadband is regulated, Walker said. “Novel concept in Washington for administrative agencies, but how about the lawful exercise of ancillary authority?” she said.

Public Knowledge President Gigi Sohn said more is at stake than just net neutrality rules if the FCC doesn’t reclassify broadband. In a January filing, Public Knowledge said changing the regulatory status of broadband would provide “a firm grounding in law for Commission authority to promote and protect broadband Internet service.”

“It’s about whether the FCC can protect broadband consumers at all,” Sohn said. “Let me tick off a couple of things that would be at risk if the FCC has no authority to regulate broadband Internet access. ... The FCC can’t change the Universal Service Fund to provide money for broadband rather than telephone service. Second, it can’t adopt truth in billing or transparency rules. Third it can’t protect broadband through public safety rules. It can’t do anything about data roaming rights for wireless carriers.” While the FCC can attempt to regulate in all those areas, the commission faces uncertainty about whether its order will be overturned, Sohn said. But much of that uncertainty would be alleviated if broadband were reclassified, she said.

Walker replied that Sohn’s concerns might be exaggerated. “I would submit ... it’s not clear that USF rules or data roaming rules or consumer protection rules would be off the table,” she said. “If the agency can tie rules like that to a specific statutory mandate, some substantive part of the Act ... that could well stand.”

Also speaking Wednesday, former U.S. Solicitor General Gregory Garre said the FCC could reclassify broadband, but would have to make the case the change is justified. “The FCC would have to formally flip its interpretation, an interpretation which it reached after much consideration and thought,” Garre said. “And then it would have to provide a reasonable explanation. There is nothing that prevents an administrative agency from changing its position over time from one administration to the next, but when an agency does that it still has to provide a reasonable explanation.”

Sohn countered that under case law, that’s not a high standard for the FCC to meet. “There’s no higher burden,” she said. “They just have to give a reasoned explanation. They don’t have to actually show that their new decision was better than their old decision.”

The preferred course would be for the FCC to ask Congress to pass legislation giving it specific authority over the Internet, Garre said. “Congress has considered bills explicitly giving the FCC authority over the Internet and has not enacted those bills. The FCC may not see that as a viable legislation option,” he said. “It does seem to me though that it would be appropriate for the FCC to go to Congress. This isn’t some minor regulatory issue that we're talking about.”

Garre is author of a recent paper on the “constitutional and statutory limits on the FCC’s authority to promulgate Internet traffic rules,” discussed at the session. It’s at http://xrl.us/bgxg4a.