FCC v Comcast: The legacy of Brand-X

So the DC Federal Circuit Court decided the FCC couldn't extend it's regulatory authority to Internet Service Providers (ISPs) through its Title I "ancillary authority". Huh.

In the immortal words of Gomer Pyle, "Surprise, surprise, surprise . . .".

In actual fact, the decision shouldn't come as a surprise at all to anyone who has been following the development of Internet regulatory policy leading up to and following the passage of the Supreme Court's Brand-X decision. The Brand-X decision (allowing the Bush-era Martin Commission to reclassify cable provisioned internet access as an "information service" - and therefore beyond the reach of the FCC's Title II telecoms regulatory authority) was the pivotal moment in which the FCC threw away its authority to regulate ISPs; a truly spectacular moment of de-regulatory hubris.

The Comcast decision this week is merely the judicial follow through of Brand-X folly.

Nevertheless, to hear many of the netroots and network neutrality promoters responding to the decision, you'd think the Comcast decision was something that arrived out of left-field. The decision throws considerable doubt onto the authority of the Genachowski Commission to put into practice much of its "Broadband Plan". You know, it's probably a little difficult to enforce a plan for something over which you've just been told you have no regulatory authority; especially difficult if you are, after all, a regulatory agency. Moreover, it's slightly embarrassing that Congress should charge that regulatory agency with coming up with a "broadband plan" in the first place when, apparently, Congress has neglected to give that agency the necessary authority to enforce such a plan. It's a conundrum within a mystery or, if you prefer, a feedback-loop within an infinite recursion.

Something is going to have to give. Relying on Title I ancillary jurisdiction is just going to be a field-day for incumbent ISP lawyers. I don't think the Genachowski Commission can, or will, proceed with things the way they are. One of two things should happen, either Congress should step in and give the FCC a clear mandate to regulate digital broadband networks or the FCC should bring digital broadband networks back under one of their existing Titles (the obvious choice being Title II). The latter option has already been called for by long-term commissioner Copps in his statement on the DC Circuit decision:

The only way the Commission can make lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service that it is.

From the perspective of an FCC Commissioner, I think this is exactly the correct response and, with the support of Commissioner Clyburn and Chairman Genachowski, it might even be doable (Commissioners McDowell and Baker are obvious obstacles). However, I think a more optimal solution - though hardly more pragmatic or possible - would be a wholesale re-evaluation of communications technology in a digital era. The 1996 Act was disaster. Nevertheless, I've said it before and I'll say it again: until Congress decides to re-address the failing Failing FAILING Communications Acts in clear, technological (NOT "services") based terms, reflecting the DIGITAL reality of the age we're ACTUALLY living in, the obscene orgy of legal filings, defining and classifying and redefining and reclassifying the various "services" that "consumers" are offered, will continue unabated. We need reform that matches regulatory powers with the technologies they regulate.

Unfortunately, if health-care is a litmus test for what we can expect, we're going to have to get used to living with the present, lobbied and litigated, "services" mess we've inherited.