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The Audacity to Hope Regulatory Restraint Will Prevail

Progress Snapshot
Release 5.9 September 2009

by Barbara Esbin*

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Much ink already has been spilled over the September 21st announcement by Federal Communications Commission Chairman Julius Genachowski that he plans to circulate a notice of proposed rulemaking expanding and codifying the FCC's four Internet policy principles.[1]  With few exceptions, the initial reactions were directed to the wisdom, or folly, of such an action.[2]  From my perspective, the key question that remains is whether the FCC possesses the statutory authority it would require to expand and codify the Internet policy principles?  My answer is no, it does not, at least not for the reasons the agency has advanced to date.[3] 

The question of regulatory jurisdiction is not so directly implicated when the FCC propounds broad, but unenforceable, policy principles, as it did with its 2005 Internet Policy Statement.[4]  But legally binding "rules of the road," such as those envisioned by the agency's Chairman, must rest on a convincing factual predicate and must come within the scope of the regulatory powers delegated to the FCC by Congress.  And it is the latter that is called into question by the FCC's reliance on the doctrine of "ancillary jurisdiction" in its Comcast P2P Order, currently on review before the D.C. Circuit Court of Appeals, a court not especially hospitable to such claims.  If the FCC's jurisdictional theory falls before the D.C. Circuit, the most it may be able to achieve with its new rulemaking is an expanded set of policy principles.  Well, one can hope.    

The FCC filed its Brief with the D.C. Circuit defending the actions taken in its 2008 Comcast P2P Order on the same day that FCC Chairman Genachowski announced his intention to initiate a rulemaking proceeding to expand and codify the four Internet policy principles adopted by the FCC in 2005 in its Internet Policy Statement.[5]   The latter, in turn, formed the basis for the FCC's action against Comcast.  The company is challenging the enforcement of the Internet Policy Statement against it on the dual grounds that the FCC lacked binding rules of behavior codifying the four principles at the time of the so-called adjudication of the underlying Free Press complaint, and that in any event, it lacked the statutory authority to regulate the network management practices of an Internet service provider (ISP) under the Communications Act. 

In fact, FCC Commissioners McDowell and Baker observed in a statement that the Chairman's speech:  "appears to admit that the Commission did not have enforceable rules at the time of last year's Comcast/BitTorrent decision while the Commission simultaneously files its appellate brief defending that decision."[6]

I have written extensively about the many failings of the Comcast P2P Order in an essay, law review article, and most recently in an "amicus curiae" brief to the D.C. Circuit.[7]   The law review article and Amicus Brief together demonstrate that the FCC lacks the "ancillary jurisdiction" (that is, the regulatory authority) it claimed to enforce its 2005 Internet Policy Statement against Comcast.  In my last short essay about the Order, I observed that a recent decision by the D.C. Circuit in Cohen v. U.S., holding that an administrative agency cannot simply change a substantive rule into a general policy statement just by say so, would, by implication, appear to doom the FCC's attempt to change a general statement of policy into an enforceable rule.[8] 

I am therefore disappointed to find that the agency continues to defend its dual claims that it may regulate the Internet under its ancillary jurisdiction and that it properly exercised its discretion to adjudicate the claims contained in the complaint against Comcast in the absence of any legally enforceable rules of behavior governing the company's network management practices.  I am also surprised because just recently, in a separate FCC report, the Public Safety and Homeland Security Bureau acknowledged that "the FCC's Title I ancillary jurisdiction is not limitless and the extent of the FCC's authority to regulate information services pursuant to Title I ancillary jurisdiction has not been defined clearly."[9]  I had thought this might potentially be a "first indication – a green shoot if you will, that the new FCC may not be afraid to call a spade a spade, and admit that its statutory authority may not permit it to regulate the network management practices of ISPs and other information service providers pursuant to its Title I ancillary jurisdiction."[10]  Or not.

But perhaps all is not lost.  Aside from hoary legal issues such as "collateral estoppel," the appropriate "standard of review," and the "standing" of the parties filing as intervenors in the case, the FCC devoted the bulk of its substantive argument to the ancillary jurisdiction claim. Evidently, the FCC desires a straight-up answer from the court on the foundational question of whether it "may enforce federal Internet policy against Comcast" using its Title I ancillary jurisdiction, rather than a remand to proceed in a different manner to resolve the purported "dispute" between the complainant and the company.  That is akin to "betting the farm."

Given the stakes, the Brief is surprisingly tepid in its defense of this exercise of the FCC's ancillary jurisdiction.   The gist of the argument is stated at its outset:

...Congress created an agency with expertise in communications policy matters precisely to enable the government to maintain regulatory authority in a dynamically changing technological marketplace.  The modest regulatory action taken in this case falls comfortably within the Commission's assigned role.[11]

Setting aside the Brief's characterization of the action as "modest" (in sharp contrast to the August 2008 News Release and related statements proclaiming that the FCC had literally saved the Internet as we know it),[12] the key take-away is that the FCC believes it can only win this case if it keeps the arguments before the court on a rather high plane of abstraction.  At 50,000 feet up, it sounds right that Congress created the FCC "to maintain regulatory authority in a dynamically changing technological marketplace."[13]  The problem is that Congress was also pretty specific about how the FCC was to exercise its regulatory authority.  The FCC's direct regulatory mandates are set forth in Titles II (governing common carriers), III (governing radio licensees) and VI (governing cable and similar video programming distribution services).  As my law review article "Undue Process" shows, Title I ancillary jurisdiction is an FCC-created and judicially-sanctioned "implied" authority, to be exercised where necessary, if not imperative, to carry out the specific regulatory obligations directly spelled out in the other Titles of the Act, and none of the provisions relied upon by the FCC support its action in this case.

It would seem that the FCC too recognizes this, as its Brief eschews detailed arguments in support of all seven of the statutory provisions it cited in the Comcast P2P Order, and rests its case almost entirely on section 230(b).[14]   For present purposes, it suffices to observe that section 230(b) contains only policy statements—not regulatory obligations—that are more convincingly read to indicate not that Congress wanted the FCC to regulate Internet service providers, but that it observe "a policy of non-regulation or un-regulation of the Internet and Internet services generally."[15]

The key finding in section 230 with respect to Internet service regulation, subsection (a)(4), states "The Internet and other interactive compute services have flourished, to the benefit of all Americans, with a minimum of government regulation."  It then follows, as expressed in section 230(b)(2), that Congress declared it to be the policy of the United States "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation."[16]

Section 230 creates protection for "Good Samaritan" blocking and screening of offensive material by interactive computer service users and providers and imposes notice obligations on providers of interactive computer services.  In the Comcast P2P Order, the FCC prohibited Comcast's alleged blocking of certain Internet traffic.  The Brief attempts to gloss over the obvious contradiction between the operative provisions of section 230, the clear policy statement supporting an unregulated Internet, and its action against Comcast by acknowledging that "Section 230(b) states several potentially conflicting policies, which the Commission has assessed and balanced."[17] The Brief asserts that section 230 as a whole represents "delegated authority to the FCC [to regulate network management practices of ISPs] in the form of broad policy outlines rather than easily outdated commands."[18]  While it is conceivable that a court less versed in the FCC's history of creative statutory interpretation might be willing to accept this birds-eye view of things, the D.C. Circuit has been more searching, especially of late, in its review of ancillary jurisdiction claims, and it just doesn't strike me that this claim will fly.[19]

This is likely also true of the Brief's heavy reliance on its argument that "Title I serves as a stand-alone source of ancillary authority" because it imposes "responsibilities" on the FCC that the agency is "required" to pursue."[20]  As demonstrated in our Amicus Brief (and in "Undue Process"), "[i]n no instance has a court upheld the FCC's exercise of ancillary jurisdiction based solely on the provisions contained in Title I of the Act."  The argument "that Title I may satisfy both prongs of the test for ancillary jurisdiction is untenable because Title I is considered the source of ancillary jurisdiction; the position, thus, is akin to saying that the FCC can regulate if its actions are ancillary to its ancillary jurisdiction, and that is one ancillary too many."[21]  

Congress did not delegate to the FCC regulatory authority over the Internet or anything else for that matter solely in the form of "broad policy outlines."  If it had, the Act would be very short, consisting perhaps of no more than a few provisions currently contained in Title I.  The rest, as I have said before, would be no more than surplus usage as the FCC would have a roving commission simply to "go and do good" without any statutory limitations whatsoever.[22]  No administrative agency operates under so broad a delegation of authority from Congress, and there is nothing in the Communications Act to suggest that the FCC is the exception.

Moving beyond section 230, the remainder of the Brief offers only the barest support for the other sources of ancillary jurisdiction discussed in the Comcast P2P Order.  In fact, in its opening pages, the Brief attempts to locate support for the ancillary jurisdiction claim on yet an eighth statutory provision, section 543 (regulation of cable rates), which was not even cited in the underlying order![23]

The Brief's rather breezy approach to jurisdiction is exemplified in the following passage:

The FCC also has ancillary authority over Comcast's cable modem blocking practices by virtue of its regulatory authority over broadcast radio and television, cable services, and telephony.  The economics of broadcasting and the local origination of programming, matters of longstanding FCC regulation, are directly affected by Internet network practices in much the same as they were by the advent of cable television.  Likewise, as a potential competitor to cable television service, video distribution via the Internet may exert downward pressure on cable prices, a matter the Commission has long regulated.  And as a competitor to traditional telephone service, Internet-based voice services can affect policies related to the regulation of telephony, from prices and practices to interconnection and technological advancement.  The viability of competition in the FCC-regulated communications market cannot be left to the discretion of cable modem providers who compete in these markets.  Finally, the FCC has ancillary jurisdiction by virtue of the duty imposed by Title I itself, which places on the agency a responsibility to ensure a communications system with reasonable prices.[24]

Lacking is any in-depth effort, either in this passage or the text that follows, to seriously articulate the requisite degree of "ancillariness" between the Commission's authority over the regulated service to which its action is purportedly "ancillary," and the particular regulation being imposed pursuant to this ancillary jurisdiction.[25]  That is, the FCC's regulation of activities not explicitly within its expressly delegated authority "must still be tied, with the necessary closeness, to its explicit powers over the regulated services."[26]

Overall, one gets the sense the agency (wisely) did not want to place more of its credibility at risk than necessary by delving into the weeds as to why, for example, sections 201, 256, 257 or 601 support its jurisdiction over an information service provider's network management practices.[27]  Again, remaining up in the clouds, the Brief observes: "Services provided over the Internet affect nearly all aspects of federally regulated communications."[28]  And, the obverse is no doubt true as well.  But having said that simply does not alter the commands of the Communications Act, and the Act plainly does not direct or even permit the FCC to regulate the Internet simply because services provided over it affect nearly all aspects of federally regulated communications.  In our Amicus Brief, Professors James B. Speta, Glen O. Robinson and I demonstrate why this "everything-affects-everything" approach to FCC jurisdiction is simply untenable.[29]  By having to reach so far to demonstrate its jurisdiction, the Comcast P2P Order ironically exposes nothing more than its absence.

We are apparently not alone in this view.  The introduction by Representatives Markey and Eshoo (recently joined by Representative Waxman) of "The Internet Freedom Preservation Act of 2009," addressing nearly every procedural and jurisdictional lacunae in the FCC's effort to regulate ISPs is yet another indication that the FCC presently lacks jurisdiction and appropriate procedures to enforce its Internet Policy Statement.[30]  Moreover, just this week, the Washington Post reported that Senators Dorgan and Snowe are considering introducing a similar bill in the Senate.[31]  And this is not the first such attempt by legislators to give the FCC such jurisdiction.[32]  It thus appears that at least some members of Congress recognize that the FCC's ancillary jurisdiction does not extend so far as to permit the agency to impose net neutrality regulation on Internet service providers, or to enforce the Internet policy principles, and that a legislative fix is necessary in order that it may do so.  By mid-2010, we are likely to know if the courts agree.

What is one to make of all this?  The FCC seems a bit conflicted about its regulatory authority over ISPs and the Internet generally, and appears to want the courts to answer the question once and for all.  As I have said, this is a bet the farm tactic, and it does not seem likely to succeed.  The timing of the net neutrality rulemaking is therefore curious, to say the least.  In any event, it will permit the FCC to attempt to support the empirical case that net neutrality regulation is needed to protect the open and free nature of the Internet and to test theories of its jurisdiction other than those articulated in the Comcast P2P Order.  Although I remain highly doubtful that the Communications Act today reflects the intent of Congress that the FCC may or must regulate the Internet in order to protect it, the lawfulness of an exercise of ancillary jurisdiction involves a fact-specific inquiry, rendering predictions of success or failure speculative.[33] 

I have previously advocated that the FCC abandon its defense of the Comcast P2P Order, vacate the action, and initiate a serious inquiry into its jurisdiction and procedures with respect to the Internet and the provision of Internet services.[34]  I suggested this course in the event the agency found that there was indeed a factual basis – that is a market failure of some sort – for exercising any such jurisdiction.  Although I do not believe that there is evidence either of market failure in the broadband Internet services market or of significant (let alone any) discriminatory ISP blocking of subscriber access to Internet content or applications, clearly the leadership of the FCC does. 

Thus we are to have this proceeding in a format different from the one I had hoped, which would be more in the form of a notice of inquiry than a notice of proposed rulemaking.  Nonetheless, in initiating its rulemaking, the FCC will have to state its factual and jurisdictional premises, and seek data, market analyses, engineering studies, and legal opinions in support of its premises.  I hope that the result will be as relentlessly data-driven as the National Broadband Plan initiative.  As former New York Senator Daniel Patrick Moynihan once observed, "You are entitled to your own opinion, but you are not entitled to your own facts."[35]  If data and dispassionate analysis drive this effort, then there is at least a possibility that the record simply will not provide the factual support for FCC regulation of the provision of Internet services at this time, and that the FCC will concede that the Communications Act neither directly nor implicitly bestows upon it the requisite regulatory authority to take such actions.

I read often in the weekly newsletter "Telecommunications Policy Review" that, "[M]an, even woman, must live in hope, right?"[36]  I hope that the new FCC will continue the Internet policies of an earlier FCC and maintain the "light touch" regulatory approach so well suited to a dynamically changing network of networks like the Internet, once it has compiled a complete record on the matter.  I submit that the newly reconstituted FCC will find that the Communications Act constrains its ability to do much more than issue broad statements of policy and principle concerning the provision of Internet services.  If that is the conclusion, then at the end of the day the new rulemaking proceeding may produce nothing more than two additional policy principles, and that that is all that is required to preserve the free and open Internet we enjoy today.  I have the audacity, I suppose, to hope that the new rulemaking will end as a story of wise regulatory humility and restraint in the face of a dynamic Internet ecosystem that is doing just fine without the government's help.  For I fear that the alternative is an Internet so choked with the undergrowth of regulatory mandates, exceptions, waivers, petitions for reconsideration, and special pleading that the engineers and innovators will abandon it for greener, freer, and more fruitful pastures.[37]

*Barbara Esbin is Senior Fellow & Director of the Center for Communications and Competition Policy at The Progress & Freedom Foundation.  The views expressed here are solely those of the author, and do not necessarily reflect the views of The Progress & Freedom Foundation Board or staff.  Apologies in advance for the shameless borrowing from the title of the best selling 2006 book by President Obama, The Audacity of Hope, but as I concluded this essay, I realized that it embodied a thought fitting here as well.  See Barack Obama, The Audacity of Hope, Crown Publishers (2006).

1.      Julius Genachowski, Chairman, Fed. Communications Comm'n, Preserving a Free and Open Internet: A Platform for Innovation, Opportunity, and Prosperity, Address Before The Brookings Institution (Sep. 21, 2009), http://www.brookings.edu/events/2009/0921_broadband_communications.aspx

2.      See, e.g., Adam Thierer and Berin Szoka, The Day Internet Freedom Died, Forbes, Sep. 22, 2009, http://www.forbes.com/2009/09/22/fcc-internet-net-neutrality-opinions-contributors-thierer-szoka.html; Press Release, Free Press, FCC Chair Proposes New Net Neutrality Rules (Sep. 21, 2009), http://www.freepress.net/node/72851; Editorial, The FCC's Heavy Hand, Wash. Post, Sep. 28, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/09/27/AR2009092703026.html?sub=AR; Press Release, AT&T, Statement on FCC Chairman's Brookings Institute Speech (Sep. 21, 2009), http://www.att.com/gen/press-room?pid=4800&cdvn=news&newsarticleid=27154; Holman W. Jenkins, Jr., "Neutering the 'Net," The Wall Street Journal, Opinion: Business World, Sep. 23, 2009, http://online.wsj.com/article/SB10001424052970204488304574429030182627044.html; Jerry Brito, "Genachowski: Internet principles aren't rules," The Technology Liberation Front, September 21, 2009, http://techliberation.com/2009/09/21/genachowski-internet-principles-arent-rules/.

3.      In re Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry Practices, Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC's Internet Policy Statement and Does Not Meet an Exception for "Reasonable Network Management," Memorandum Opinion and Order, 23 F.C.C.R. 13,028, ¶ 1 (Aug. 1, 2008), http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-183A1.pdf (the FCC may enforce federal Internet policy against Comcast pursuant to its Title I ancillary jurisdiction; such jurisdiction is reasonably ancillary to its regulatory responsibilities in sections 1, 201, 230(b), 256, 257, 601(4) and 706(a) of the Act).

4.      Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; 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; Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, CC Docket Nos. 02-33, 01-337, 98-10, 95-20, GN Docket No. 00-185, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986 (2005), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf (Internet Policy Statement).

5.      Brief for Respondents, Comcast Corp. v. FCC, No. 08-1291 (D.C. Circuit Court of Appeals) [hereinafter "FCC Brief"], http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293573A1.pdf.

6.      Fed. Communications Comm'n. "Joint Statement of Commissioners Robert M. McDowell and Meredith A. Baker on Chairman Genachowski's Speech on Net Neutrality," Sep. http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293574A1.pdf.

7.      Barbara Esbin, The Progress & Freedom Foundation, "'The Law is Whatever the Nobles Do': Undue Process at the FCC," Progress on Point Release 15.12, Aug. 2008, http://www.pff.org/issues-pubs/pops/2008/pop15.12undueprocess.pdf; Barbara Esbin & Adam Marcus, "The Law is Whatever the Nobles Do": Undue Process at the FCC, 17 COMMLAW CONSPECTUS *1 (2009) [hereinafter Undue Process], http://commlaw.cua.edu//articles/v17/17.2/Esbin-Marcus-Revised.pdf; Brief Amicus Curiae of Professors James B. Speta and Glen O. Robinson and The Progress and Freedom Foundation in Support of Petitioner Comcast Corporation and Urging That the FCC's Order Be Vacated, Comcast Corp. v. FCC, No. 08-1291 (D.C. Circuit Court of Appeals), [hereinafter "Amicus Brief"] http://www.pff.org/issues-pubs/filings/2009/081009-amicus-brief-comcast-vs-FCC-(08-1291).pdf.

8.      See Cohen v. U.S., 2009 U.S. App. LEXIS 17677 (No. 08-5088)(D.C. Cir. Aug. 7, 2009), discussed in Barbara Esbin, The Progress & Freedom Foundation "Good-Bye, Humpty Dumpty?," Progress Snapshot Release 5.7, Aug. 2009, http://www.pff.org/issues-pubs/ps/2009/ps5.7-goodbye-humpty-dumpty.html.

9.      Public Safety and Homeland Security Bureau, Fed. Communications Comm'n, FCC Preparedness for Major Public Emergencies, Chairman's 30 Day Review, Sep. 2009, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293332A1.pdf.

10.    Barbara Esbin, The Progress & Freedom Foundation, "Green Shoots at the FCC," PFF Blog, September 11, 2009, http://blog.pff.org/archives/2009/09/green_shoots_at_the_fcc.html.

11.    FCC Brief, supra note 5 at 30.

12.    See Fed. Communications Comm'n, "Commission Orders Comcast to End Discriminatory Network Management Practices," Aug. 1, 2008, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-284286A1.pdf ("The Commission concluded that Comcast's network management practices discriminate among applications rather than treating all equally and are inconsistent with the concept of an open and accessible Internet."); In re Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry Practices, Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC's Internet Policy Statement and Does Not Meet an Exception for "Reasonable Network Management," Memorandum Opinion and Order, 23 F.C.C.R. 13,028, 13,078 (Aug. 1, 2008) (Copps, Comm'r, statement) ("This is a landmark decision for the FCC—a meaningful stride forward on the road to guaranteed openness of the Internet."), http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-183A3.pdf; Id. at 13,083-84 (Adelstein, Comm'r, statement) ("I am confident that today's decision will reassure consumers that they will continue to enjoy freedom on the Internet."), http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-183A4.pdf.

13.    FCC Brief, supra note 5 at 30.

14.    Undue Process, supra note 7. The reader is directed to pages *52-62 of the article for a more complete explanation of the many reasons why this provision is particularly inapposite.

15.    Id. at *58.

16.    Id. at *58-59.

17.    FCC Brief, supra note 5 at 39.

18.    Id. at 39.

19.    MPAA v. FCC, 309 F.3d 796 (D.C. Cir. 2002); American Library Association v. FCC, 406 F.3d 689 (D.C. Cir. 2005).

20.    FCC Brief, supra note 5 at 46.

21.    Amicus Brief, supra note 7 at 10-11 & note 8; Undue Process, supra note 7 at *62-72.

22.    Barbara Esbin, The Progress & Freedom Foundation, "FCC Reform: Scalpel or Steamroller?", Progress on Point Release 15.15, Sep. 2008, http://www.pff.org/issues-pubs/pops/2008/pop15.15FCCreform.pdf.

23.    FCC Brief, supra note 5 at 15.

24.    Id. at 21-22.

25.    See Amicus Brief, supra note 7; NARUC v. FCC, 533 F.2d 601, 613 (D.C. Cir. 1976).

26.    Id. at 14.

27.    The Brief does argue at some length that section 706(a) supports the exercise of ancillary jurisdiction in this instance.  But, for the reasons stated in Undue Process and our Amicus Brief, these claims are also unlikely to prevail on review, as the FCC itself has previously determined that section 706(a) does not constitute an independent grant of authority to the agency.  See FCC Brief, supra note 5 at 40-42.  Instead, in carrying out its responsibilities under section 706(a), the FCC must still find its regulatory authority elsewhere in the Act.  As a consequence, standing alone it cannot support an exercise of ancillary jurisdiction.  See Undue Process, supra note 7 at *72, Amicus Brief, supra note 7 at 25.  This remains the case notwithstanding the D.C. Circuit's recent decision in Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-907 (D.C. Cir. 2009) ("the general and generous phrasing of § 706 means that the FCC possess significant ...authority and discretion to settle on the best regulatory or deregulatory approach to broadband").

28.    FCC Brief, supra note 5 at 43.

29.    Amicus Brief, supra note 7 at 20.

30.    See Barbara Esbin, The Progress & Freedom Foundation, "Belt & Suspenders," PFF Blog, Aug. 6, 2009, http://blog.pff.org/archives/2009/08/belt_suspenders.html.  The bill would amend Title I of the Communications Act, among other things, to: (i) include a new "Internet Freedom" section containing the FCC's four Internet policy principles and adding a guideline on consumer notification; (ii) impose on Internet access service providers statutory net neutrality duties that incorporate the policies contained in the FCC's Internet Policy Statement as interpreted in the Comcast P2P Order, and other duties that are reminiscent of common carrier obligations; (iii) require the FCC to promulgate rules ensuring that Internet access service providers fulfill the net neutrality duties described in the bill and to establish complaint procedures for aggrieved consumers; (iv) describe the FCC's compliance enforcement authority, including its ability to impose forfeiture liability regardless of whether the provider holds an FCC-issued license; and (v) define the terms used in the provision so that its applicability and scope are evident.  As I asked in the blog, "If the FCC already has the sweep of jurisdiction to regulate Internet services that it claimed in its 2008 Comcast P2P Order, why would it require a statutory amendment such as the Markey-Eshoo bill?"

31.    Cecilia Kang, "Senators Plan Bill To Advance Net Neutrality," Post I.T., WashingtonPost.com, Sep. 28, 2009, http://voices.washingtonpost.com/posttech/2009/09/senators_plan_bill_to_advance.html.

32.    Undue Process, supra note 7, at *24 n.125.

33.    Additionally, whether the Commission possesses ancillary jurisdiction to codify the principles contained in the Internet Policy Statement under some theory other than the one articulated in the Comcast P2P Order is a question separate from the legitimacy of its action in that case.  See, e.g., Kevin Werbach, Off the Hook, Cornell L. Rev. (forthcoming), available at http:/ssrn.com/abstract=1371222 (last updated April 1, 2009) (also expressing doubt about the jurisdictional basis of the action against Comcast and arguing that the FCC may locate its authority to regulate the Internet in its obligations to oversee interconnection under Title II of the Communications Act).  In the alternative, the FCC could seek to reclassify all the broadband Internet services that it has previously classified as Title I "information services" —cable modem, wireline, wireless, and broadband over powerline—as Title II "common carrier" services automatically subject to the full panoply (or "the full catastrophe," as Nicholas Kazantzakis' character Zorba would say) of Title II common carrier regulation, including the prohibition against unreasonable discrimination, tariff reviews, and pricing regulation.  I am not suggesting that this is either necessary or would be a good idea (for I do not).  Nor am I suggesting that this abrupt change in regulatory policy would be easy to explain to a reviewing court, but merely that it is a legal possibility not foreclosed to the agency.  See Fox v. FCC, No. 07-582, 129 S. Ct. 1800 (Apr. 28, 2009).

34.    Barbara Esbin, The Progress & Freedom Foundation "Good-Bye, Humpty Dumpty?," Progress Snapshot Release 5.7, Aug. 2009, http://www.pff.org/issues-pubs/ps/2009/ps5.7-goodbye-humpty-dumpty.html ("Given the myriad jurisdictional and procedural problems with the Comcast P2P Order, the current FCC, under the leadership of Chairman Genachowski, would be well advised to drop any defense of its actions, vacate the Order on its own accord, and initiate a serious inquiry into its jurisdiction and procedures with respect to the Internet and the provision of Internet services.  This could be done either as a part of one of the many pending rulemaking or inquiry proceedings begun, but left unresolved, by Chairman Genachowski's predecessors.").

35.    Quoted in Timothy J. Penny, "Facts Are Facts," National Review Online, Sep. 4, 2003, http://www.nationalreview.com/nrof_comment/comment-penny090403.asp.

36.    See, e.g., Telecommunications Policy Review Associates, Telecommunications Policy Review, Vol. 25, No. 37 (Sep. 13, 2009) (Subscription is by invitation only).

37.    See Richard Bennett, Information Technology and Innovation Foundation, Designed for Change: End-to-End Arguments, Internet Innovation, and the Net Neutrality Debate, Sep. 2009, http://www.itif.org/files/2009-designed-for-change.pdf ; Comments of Dr. David Farber, ITIF Event: Designed for Change: End-to-End Arguments, Internet Innovation, and the Net Neutrality Debate, http://www.itif.org/index.php?id=281 (Concluding that this might happen if FCC goes forward with its plan to regulate the operations of the Internet).

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