2009-10-22

On Thursday, Federal Communications Commission (FCC) Chairman Julius Genachowski is expected to unveil draft rules aimed at imposing network neutrality obligations on Internet Service Providers (ISPs). In the excitement surrounding the announcement, however, many have overlooked the fact that the this rulemaking is built on a shoddy and dangerous foundation – the idea that the FCC has unlimited authority to regulate the Internet.

Genachowski has announced that the draft regulations will require ISPs to abide by the "Four Freedoms" set forth in the FCC's 2005 Internet Policy Statement, as well as the additional principles of nondiscrimination and transparency. EFF strongly believes in these six principles. Our work speaks for itself: we are developing software tools to Test Your ISP in the wake of uncovering Comcast’s meddling with BitTorrent traffic, seeking a DMCA exemption to let you run applications of your choice on your mobile phone, and fighting Hollywood’s efforts to force DRM restrictions into your television.

But Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, we expect the FCC will rely on its "ancillary jurisdiction," a position that amounts to “we can regulate the Internet however we like without waiting for Congress to act.” (See, e.g., the FCC's brief to a court earlier this year). That’s a power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post.

Hence the danger. If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC "Internet Decency Statement." After all, outgoing FCC Chairman Martin was a crusader against "indecency" on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it's also too easy to imagine an FCC "Internet Lawful Use Policy," created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance. After all, it was only thanks to a jurisdictional challenge -- ironically, by many of the same groups currently celebrating Genachowski's rulemaking announcement -- that we defeated the FCC's "broadcast flag" mandate which would have given Hollywood and federal bureaucrats veto power over innovative devices and legitimate uses of recorded TV programming.

EFF's concerns are born from more than just a general skepticism about government regulation of the Internet. Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T.

Fortunately, there are two opportunities to reign in the FCC’s expansive views of its own “ancillary jurisdiction.” A federal court is considering this important question as part of Comcast's challenge to the FCC's order last year regarding interference with BitTorrent traffic (PFF filed a strong amicus brief in the case, arguing against the FCC's power grab). Or Congress could limit the FCC's power by authorizing to regulate only to ensure network neutrality.

So while we look forward to evaluating Chairman Genachowski’s proposed net neutrality regulations, the first step must be a clear rejection of any suggestion that those regulations can be based on “ancillary jurisdiction.” Otherwise, "net neutrality" might very well come to be remembered as the Trojan Horse that allowed the FCC take over the Internet.

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