Net Neutrality Draft Order Cites Direct and Ancillary Authority
The first version of the draft FCC net neutrality order cites both direct and ancillary authority as giving the commission purview to bar ISPs from discriminating in the type of traffic they carry on their networks, agency officials said. Ancillary authority was a prominent issue in April’s Comcast ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which held that the commission was out of bounds in relying on Title I. But some law professors said there are risks to a Title I approach, even if specific sections of the Communications Act are also cited.
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The draft order -- circulated in paper form about 10 p.m. Tuesday and in electronic format Wednesday for a vote at the Dec. 21 FCC meeting -- cites parts of both the Communications Act of 1934 and the 1996 Telecom Act, commission officials said. Statutes cited include Sections 201 and 706, they said. Section 201 was one of the Title II provisions that FCC Chairman Julius Genachowski had said he wouldn’t forbear from (CD May 7 p1) when he planned to reclassify broadband transport under that section as part of his efforts to mandate net neutrality. Section 706 of the Telecom Act was the subject of a recent FCC report to Congress that found as many as 24 million Americans lack access to broadband service.
The draft order uses that section to undergird its authority to promulgate net neutrality rules, FCC officials said. Also mentioned in the order, which many at the commission still were digesting Thursday, are sections under Titles II, III and VI, they said. Ancillary authority is used to complement and reinforce the direct authority that the commission contends it was given to enact the rules provided in the order, an agency official said. A commission spokeswoman declined to comment.
Using Section 706 may carry some risk for the commission in court, where it’s sure to face a lawsuit over the eventual rules, said some telecom law professors who hadn’t seen the draft. “This section requires the FCC and states to encourage ubiquitous access to ‘advanced telecommunications capability,'” said Professor Rob Frieden of Pennsylvania State University. “The commission probably will face judicial skepticism [on] whether and how Section 706 confers statutory authority to encourage Internet access through selective regulation."
A 1998 commission order cited in the Comcast decision didn’t interpret Section 706 as having given the commission direct authority, said Professor Brad Bernthal of the University of Colorado. A basis for direct authority might be found to have been triggered by the commission’s Section 706 report this year, which said many can’t get broadband, but the record before the commission in the net neutrality rulemaking may not be sufficient to give the regulator reason under the Chevron doctrine to have changed its mind from 12 years ago, he said.
"There’s a procedural challenge that could be mounted” on whether Section 706 can be used to directly give the commission authority, Bernthal said. “And why does Section 706 now give you a direct grant of authority that would allow for the net neutrality action?” The goal is to show a nexus between the way the statute reads and net neutrality, he said. “Of course, the FCC does have the benefit of Chevron deference,” Bernthal said. “But that’s a tricky nexus to make out.” The Chevron doctrine calls for courts to defer to a regulatory agency’s interpretation of a law in administers.
"There is no guarantee of success under the approach Chairman Genachowski has chosen,” but there’s “a good legal basis to support it,” Kevin Werbach, who helped lead the FCC review for the administration’s transition team in 2008, wrote in a blog entry that the FCC also posted. “The Supreme Court in the 2005 Brand X case expressly stated that Title I ‘ancillary authority’ gave the FCC some authority to adopt broadband rules. And the court that overturned the FCC’s Comcast order actually provided a roadmap for a successful do-over, by emphasizing what the Commission failed to argue then,” he said. “The FCC picked the wrong statutory provision in Comcast, and its sloppiness in the proceeding under prior Chairman Kevin Martin undermined its legal case. The current Chairman won’t make those mistakes.”