A layered and Nuanced Assessment of Network Neutrality Rationales

31 Open Internet Order at ¶21.

32 Id. at ¶24.

33 Id. at ¶29.

34 “By comparison to the benefits of these prophylactic measures, the costs associated with the open Internet rules adopted here are likely small. Broadband providers generally endorse openness norms—including the transparency and no blocking principles—as beneficial and in line with current and planned business practices (though they do not uniformly support rules making them enforceable) Even to the extent rules require some additional disclosure of broadband providers’ practices, the costs of compliance should be modest.” Id. at ¶39.

35 Open Internet NPRM, 24 F.C.C.R. at 13068. “Broadband Internet access service providers have an incentive to use this gatekeeper role to make it more difficult or expensive for end users to access services competing with those offered by the network operator or its affiliates.” Id. at 13094.

36 The FCC relies on a claim of ancillary jurisdiction when the Commission lacks explicit statutory authority. The FCC successfully invoked ancillary jurisdiction to regulate cable television even before the Commission received a statutory mandate to do so. “The FCC needed a hook to assert jurisdiction over cable. To reach that goal, it used a two-step process. First, the Commission found that cable was within its primary statutory grant of authority under section 152(a) of the [Communications] Act, which allows the FCC to regulate ‘all interstate and foreign communication by wire or radio.’ Second, the FCC invoked section 303(r) of the Act, which allows the Commission to issue ‘such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law,’ as ‘public convenience, interest, or necessity requires.’ The FCC also referenced section 154(i), which provides that ‘[t]he Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with [the Communications Act], as may be necessary in the execution of its functions.’ Kevin Werbach, Off the Hook, 95 Cornell L. Rev. 535, 572 (Mar. 2010) (citations omitted). The Supreme Court affirmed the FCC’s claim of ancillary jurisdiction. United States v. Sw. Cable Co., 392 U.S. 157 (1968). See also FCC v. Midwest Video Corp. (Midwest Video II), 440 U.S. 689 (1979); United States v. Midwest Video Corp. (Midwest Video I), 406 U.S. 649 (1972); James B. Speta, The Shaky Foundations of the Regulated Internet, 8 J. Telecomm. & High Tech. L. 101 (Winter 2010); John Blevins, Jurisdiction as Competition Promotion: A Unified Theory of the FCC’s Ancillary Jurisdiction, 36 Fla. St. U. L. Rev. 585 (Summer 2009); Andrew Gioia, FCC Jurisdiction Over ISPs in Protocol-Specific Bandwidth Throttling, 15 Mich. Telecomm. & Tech. L. Rev. 517 (Spring 2009).

37 Information service is defined as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” 47 U.S.C. § 153(20) (2010).

38³⁸ Telecommunications service is defined as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” 47 U.S.C. § 153(46) (2010).

39³⁹ See, e.g., Edward Wyatt, F.C.C. Proposes Rules on Internet Access, N.Y. Times, May 7, 2010, at B3, available at http://www.nytimes.com/2010/05/07/technology/07broadband.html.

40⁴⁰ 47 U.S.C. § 160(a) (2009) establishes regulatory forbearance criteria for telecommunications service providers. The FCC can abandon most Title II common carrier regulatory requirements if it determines that: (1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest.

41⁴¹ “[E]ven if there is competition among broadband Internet access service providers, once an end-user customer has chosen to subscribe to a particular broadband Internet access service provider, this may give that broadband Internet access service provider the ability, at least in theory, to favor or disfavor any traffic destined for that subscriber.” Open Internet NPRM, 24 F.C.C.R. at 13094.

42⁴² Id. at 13067. The Commission also noted: “The evolution in Internet usage, and associated developments in network technology, have respectively motivated and enabled network operators to differentiate price and service for end users and for providers of content, applications, and services. A significant debate has developed over how best to preserve the Internet’s openness. We thus find it appropriate at this time to evaluate the need for oversight of broadband Internet access service providers’ practices.” Id. at 13084.

43⁴³ Id. at 13093.

44⁴⁴ Id. at 13103 (citing Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, 20 F.C.C.R. 14986, 14988 (2005); Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Universal Service Obligations of Broadband Providers; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review—Review of Computer III and ONA Safeguards and Requirements; Conditional Petition of the Verizon Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with Regard to Broadband Services Provided Via Fiber to the Premises; Petition of the Verizon Telephone Companies for Declaratory Ruling or, Alternatively, for Interim Waiver with Regard to Broadband Services Provided Via Fiber to the Premises; Consumer Protection in the Broadband Era, CC Docket Nos. 02-33, 95-20, 98-10, 01-337, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 F.C.C.R. 14853, 14904 (2005), aff’d, Time Warner Telecom, Inc. v. FCC., 507 F.3d 205 (3d Cir. 2007).

45⁴⁵ Open Internet NPRM, 24 F.C.C.R. at 13104. The FCC appears to make this request at the recommendation of a single ISP even though the Commission acknowledges that the 2005 Internet Policy Statement, which contains principles the Commission now wants to establish as rules, “was placed in five already-opened dockets dealing with issues relating to Internet access service providers, but it was not placed in the docket most likely to address content, applications, and services—the IP-Enabled Services [19 F.C.C.R. 4863 (2004)] docket.” Id. at n.223.

46 “We have ancillary jurisdiction over matters not directly addressed in the Act when the subject matter falls within the agency’s general statutory grant of jurisdiction and the regulation is ‘reasonably ancillary to the effective performance of the Commission’s various responsibilities.’ That test is met with respect to broadband Internet access service.” Open Internet NPRM, 24 F.C.C.R. at 13099 (quoting United States v. Sw. Cable Co., 392 U.S. 157, 172–73 (1968) (citing United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972)). See also Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, 23 F.C.C.R. 13028, 13033-44 (2008). But cf. Comcast Corp., supra n. 3. (rejecting the FCC’s extension of ancillary jurisdiction absent a direct statutory link).

47 Codified at 47 U.S.C. § 1302(a).

48 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).

49 47 U.S.C. § 230(b)(1).

50 47 U.S.C. §230(b)(2).

51“The dramatic expansion of this new marketplace of ideas . . . demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” Reno v. ACLU, 521 U.S. 844, 885 (1997).

52 47 U.S.C. § 201(b). See also Alliance for Community Media v. FCC, 529 F.3d 763, 772–74 (6th Cir. 2008), cert. denied, 129 S. Ct. 2821 (2009); AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999).

53 47 U.S.C. § 1302(a).

54 47 U.S.C. § 1302(d)(1).

55⁵⁵ Comcast Corp. 600 F.3d at 644 (citing Am. Library Ass’n v. FCC, 406 F.3d 689, 692 (D.C. Cir. 2005)).

56⁵⁶ The court does not interpret the Brand X case as precedent for the imposition of plenary authority over any matter involving cable television company provided Internet access. “By leaping from Brand X’s observation that the Commission’s ancillary authority may allow it to impose some kinds of obligations on cable Internet providers to a claim of plenary authority over such providers, the Commission runs afoul of Southwestern Cable and Midwest Video I.” Comcast Corp., 600 F. 3d at 650. “The Commission’s exercise of ancillary authority over Comcast’s network management practices must, to repeat, ‘be independently justified.’” Id. at 651 (citing Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 533 F.2d 601, 612 (D.C. Cir. 1976) (rejecting the FCC’s preemption of state and local regulation of two-way, intrastate, non-video cable transmissions)).

57⁵⁷ The Commission therefore rests its assertion of authority over Comcast’s network management practices on the broad language of section 4(i) of the Act: “The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions . . . .” Comcast Corp., 600 F. 3d at 644 (citing 47 U.S.C. § 154(i); Formal Complaint of Free Press & Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, 23 F.C.C.R. 13028, 13036 (2008)).

58⁵⁸ See FCC v. Midwest Video Corp., 440 U.S. 689 (1979) (Midwest Video II); United States v. Midwest Video Corp., 406 U.S. 649 (1972) (Midwest Video I); United States v. Sw. Cable Co., 392 U.S. 157 (1968).

59⁵⁹ Comcast Corp., 600 F.3d at 646.

60⁶⁰ Broadcast flags are instructions transmitted from content sources that limit or prohibit redistribution by receiving devices. “One of the leading proposals for a . . . [digital television] broadcast content protection mechanism involves the use of a redistribution control descriptor or flag to signal DTV reception equipment to limit the indiscriminate redistribution of digital broadcast content.” Digital Broadcast Content Protection, MB Docket 02-230, Report and Order and Further Notice of Proposed Rulemaking, 18 F.C.C.R. 23550, 23556 (2003), vacated in part and reversed in part, American Library Ass’n. v. F.C.C., 406 F.3d 689 (2005).

61⁶¹ Comcast Corp., 600 F.3d at 646.

62⁶² The court noted that Comcast had conceded “that the Commission’s action here satisfies the first requirement because the company’s Internet service qualifies as ‘interstate and foreign communication by wire’ within the meaning of Title I of the Communications Act.” Id. 600 F.3d at 646 (citing 47 U.S.C. § 152(a)). The court also rejected the Commission’s claim that because Comcast had used the existence of FCC jurisdiction in another case the company should be judicially stopped from challenging the Commission’s jurisdiction now. The court interpreted Comcast’s position in the other case as simply acknowledging the FCC’s jurisdiction over wire and radio services, which includes what Comcast offers. “Because Comcast never clearly argued in the California litigation that the Commission’s assertion of authority over the company’s network management practices would be ‘reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities’ . . . , that question remains for us to answer.” Id. 600 F.3d at 649.

63⁶³ The Commission cited to §§ 1, 230(b), 706, 257, 201 and 623 of the Communications Act.

64⁶⁴ Comcast Corp. 600 F.3d at 655.

65⁶⁵ “Were we to accept that theory of ancillary authority, we see no reason why the Commission would have to stop [at imposing regulation of Internet Service Providers’ rates], for we can think of few examples of regulations that apply to Title II common carrier services, Title III broadcast services, or Title VI cable services that the Commission, relying on the broad policies articulated in section 230(b) and section 1, would be unable to impose upon Internet service providers.” Comcast Corp., 600 F.3d at 655.

66⁶⁶ Brand X, 545 U.S. at 1005 (2005) (Scalia, J. dissenting).

67⁶⁷ Id. at 1013.

68⁶⁸ Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities, Policy Statement, 20 F.C.C.R. 14986 (2005) [hereinafter 2005 Internet Policy Statement].

69⁶⁹ Amendment of Section 64.702 of the Commission’s Rules and Regulations (Second Computer Inquiry), Final Decision, 77 F.C.C.2d 384 (1980), aff’d sub nom. Computer and Communications Indus. Ass’n. v. FCC, 693 F.2d 198 (D.C. Cir. 1982).

70⁷⁰ “In the Computer II rules, the Commission subjected facilities-based providers to common-carrier duties not because of the nature of the ‘offering’ made by those carriers, but rather because of the concern that local telephone companies would abuse the monopoly power they possessed by virtue of the ‘bottleneck’ local telephone facilities they owned.” Brand X, 545 U.S. at 996.

71⁷¹ Amendment of Sections 64.702 of the Commission’s Rules & Regulations (Third Computer Inquiry), Report and Order, 104 F.C.C.2d 958 (1986), vacated sub nom. California v. FCC, 905 F.2d 1217 (9th Cir. 1990), on remand, Computer III Remand Proceedings: Bell Operating Co. Safeguards, Notice of Proposed Rulemaking & Order, 6 F.C.C.R. 174 (1990), rule modification, 6 F.C.C.R. 7571 (1991), vacated in part and remanded, California v. F.C.C., 39 F.3d 919 (9th Cir. 1994), on remand, Computer III Further Remand Proceedings: Bell Operating Co. Provision of Enhanced Servs., Order, 10 F.C.C.R., 5692 (1995).

72⁷² Telecommunications Act of 1996, Pub. L. No. 104-104, § 401, 110 Stat. 56, 128-29 (codified as amended at 47 U.S.C. § 151 et seq. (2008)).

73⁷³ See, e.g., Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, Report and Order and Further Notice of Proposed Rulemaking, 22 F.C.C.R. 15817 (2007) (clarifying that automatic roaming is a common carrier obligation for commercial mobile radio service carriers that requires them to provide roaming services to other carriers upon reasonable request and on a just, reasonable, and non-discriminatory basis pursuant to Sections 201 and 202 of the Communications Act).

74⁷⁴ 47 U.S.C. § 160 (2010).

75⁷⁵ “Under its Computer Inquiry rules, which foreshadowed the definitions of ‘information’ and ‘telecommunications’ services, . . . the Commission forbore from regulating as common carriers ‘value-added networks’--non-facilities-based providers who leased basic services from common carriers and bundled them with enhanced services; it said that they, unlike facilities-based providers, would be deemed to provide only enhanced services.” Brand X, 545 U.S. at 1011.

76⁷⁶ 406 F.3d 689 (D.C. Cir. 2005)[hereinafter ALA v. FCC]. “In this case, all relevant materials concerning the FCC’s jurisdiction - including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice - confirm that the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.” Id. at 798.

77⁷⁷ Id. at 691-692.

78⁷⁸ “The effectiveness of the broadcast flag regime is dependent on programming being flagged and on devices capable of receiving broadcast DTV signals (collectively "demodulator products") being able to recognize and give effect to the flag. Under the rule, new demodulator products (e.g., televisions, computers, etc.) must include flag-recognition technology. This technology, in combination with broadcasters’ use of the flag, would prevent redistribution of broadcast programming.”Id. at 693.

79⁷⁹ See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984). The Supreme Court supported deferral to the expertise of a regulating agency “if the intent of Congress is clear.” 467 U.S. at 842-43. If “Congress has not directly addressed the precise question at issue,” and the agency has acted pursuant to an express or implied delegation of authority, the agency’s statutory interpretation is entitled to deference, as long as it is reasonable. Id. at 843-44. See also United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

80⁸⁰ ALA v. FCC, 406 F.3d at 702.

81⁸¹ “It is enough here for us to find that the Communications Act of 1934 does not indicate a legislative intent to delegate authority to the Commission to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission. That is the end of the matter. It turns out, however, that subsequent legislation enacted by Congress confirms the limited scope of the agency’s ancillary jurisdiction and makes it clear that the broadcast flag regulations exceed the agency's delegated authority under the statute.” Id. at 706.

82⁸² Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, Report and Order and Further Notice of Proposed Rulemaking, 22 F.C.C.R. 15817 (2007).

83⁸³ See e.g., Regulation of Prepaid Calling Card Services, Declaratory Ruling and Report and Order, 21 F.C.C.R. 7290, (2006), rev’d in part, Qwest Services Corp. v. FCC, 509 F.3d 531, (D.C. Cir. 2007) (affirming the FCC’s regulatory determination but reversing the Commission’s different treatment of calling cards that provide access to VoIP versus ones that provide a menu of services and options).

84 VoIP service providers that can receive or deliver calls to conventional wired and wireless networks must contribute to universal service funding programs designed to promote affordable dial up telephone service. Universal Serv. Contribution Methodology, Report and Order and Notice of Proposed Rulemaking, 21 F.C.C.R. 7518, 7538 (2006) (extending section 254(d) permissive authority to require interconnected VoIP providers to contribute to the USF), reh’g denied, vacated in part on other grounds, Vonage Holding Corp. v. FCC, 489 F.3d 1232 (D.C. Cir. 2007). Additionally they must make arrangements to support subscriber access to emergency 911 service, cooperate with law enforcement authorities, incorporate the technical accommodations telephone companies provide persons with disabilities, such as deaf callers, and support the ability of existing subscribers to keep their existing telephone numbers when switching service. IP-Enabled Servs., E911 Requirements for IP-Enabled Service Providers, First Report and Order and Notice of Proposed Rulemaking, 20 F.C.C.R. 10245 (2005), petition for review denied, 473 F.3d 302 (D.C. Cir. 2006); Communications Assistance for Law Enforcement Act & Broadband Access & Servs., First Report and Order and Further Notice of Proposed Rulemaking, 20 F.C.C.R. 14989 (2005), petition for review denied, 451 F.3d 226 (D.C. Cir. 2006); IP-Enabled Servs., Implementation of Sections 255 and 251(A)(2) of the Communications Act of 1934, as Enacted by the Telecommunications Act of 1996: Access to Telecommunications Service, Telecommunications Equipment and Customer Premises Equipment by Persons with Disabilities Telecommunications, Report and Order, 22 F.C.C.R. 11275 (2007), Order and Public Notice Seeking Comment, 22 F.C.C.R. 18319 (2007) (granting in part and denying in part waivers of the FCC order). See also, Contributions to the Telecommunications Relay Services Fund, CG Docket No. 11-47, Notice of Proposed Rulemaking, FCC 11-38, 2011 WL 742268 (rel. March 3, 2011); Telephone Number Requirements for IP Enabled Services Providers; Local Number Portability Porting Interval and Validation Requirements; IP-Enabled Services; Telephone Number Portability; CTIA Petitions for Declaratory Ruling on Wireline-Wireless Porting Issues; Final Regulatory Flexibility Analysis; Number Resource Optimization, WC Docket Nos. 07-243, 07-244, 04-36; CC Docket Nos. 95-116, 99-200, Report and Order, Declaratory Ruling, Order on Remand, and Notice of Proposed Rulemaking, 22 F.C.C.R. 19531 (2007); Matters of Local Number Portability Porting Interval and Validation, WC Docket No. 07-244, Report and Order, 25 F.C.C.R. 6953 (May 20, 2010)(establishing fast deadlines for conversions).

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