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CONTACT: Amy Smorodin
August 4, 2009
(202) 289-8928
Undue Process at The FCC
Esbin and Marcus Publish Journal Article on FCC's Comcast P2P Order

WASHINGTON D.C. - Procedural and jurisdictional flaws raise serious concerns over the legality of the  Federal Communications Commission's Comcast P2P Order, explain Barbara Esbin and Adam Marcus in, "'The Law is Whatever the Nobles Do:' Undue Process at the FCC," published in CommLaw Conspectus, Journal of Communications Law and Policy Summer 2009 Edition.  PFF is releasing an executive summary of the article, intended to be a "reader's guide" to the full article.  The article's release precedes the outcome of the pending appeal of the decision in the DC Circuit Court.

In the article, Esbin, Senior Fellow and Director of PFF's Center for Communications and Competition Policy, and Marcus, Research Fellow and Senior Technologist, present an extensive legal analysis of the procedural and jurisdictional issues concerning the FCC's Comcast P2P Order, in which the Commission found the network operator violated its Internet Policy Statement.  Specifically, the authors take issue with the "FCC’s dual claims that it has ancillary authority to enforce national Internet policy, and that it may simultaneously exercise that authority by adjudicating the merits of the Free Press Complaint."

The authors specifically address the Commission's assertion that it may use its ancillary jurisdiction to "vindicate" Federal Internet policy by regulating broadband Internet service providers and enforcing the principles contained in the Internet Policy Statement. To locate the basis for its authority to act in the P2P dispute, the FCC relied on portions of no fewer than seven separate provisions of the Communications Act. However, no provision of the Communications Act directly authorizes the FCC to regulate Internet services.   Ancillary jurisdiction, the authors explain, was recognized by the Supreme Court to allow the FCC certain limited authority to regulate communications in the absence of an express delegation of regulatory power from Congress.  Courts thus far have upheld its use solely in limited instances where the agency demonstrated that the regulation was necessary for the accomplishment of the FCC’s delegated regulatory powers over either common carriers or broadcasters.  The authors conclude that none of the statutory bases for jurisdiction relied upon by the FCC provide the authority to regulate broadband Internet service or to enforce the consumer entitlements contained in the Internet Policy Statement claimed by the FCC in the Comcast P2P Order

The authors also question the Commission's decision to combine adjudication, or enforcement actions directed at specific past behaviors, and rulemaking, or prospective rules generally applicable across an industry, in the same procedure.  Among other failings, the FCC has never released a notice of proposed rulemaking that either publicly outlined the rules to be applied to Comcast's broadband network management practices or established a procedural vehicle for use in handling violations of such rules.  It appears that the Commission also failed to provide Comcast with adequate process in which to address complaints, by relying on statements made in unrelated proceedings for "notice" and by claiming the two public hearings the company was invited to speak at satisfied due process "opportunity to be heard" requirements.

The author further explains that the Commission lacked established procedures for addressing "Formal Complaints" against a non-common carrier.  "It appears," Esbin states, "to have both created a new set of such procedures at the same time it applied them to Comcast, and established a new framework for [handling] similar complaints in the future."

The authors conclude, "Regardless of whether one believes that government-mandated norms of behavior for bandwidth providers are good or bad policy, the only acceptable means by which government may impose such mandates is by remaining in conformity with the rule of law and by scrupulous compliance with its own procedures."

"Undue Process at the FCC," is available on the CommLaw Conspectus website.  The executive summary of the article can be found on the PFF site. The article is an expanded version of Esbin's previous paper of the same name.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



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