WASHINGTON D.C. — Last month's ruling that the Federal Communications Commission (FCC) lacks the authority to regulate Internet services should have moved the question of network neutrality regulation from the agency to the Congress. Yet the debate over the FCC's ability to write rules for the Internet has since only grown more intense, and now the agency appears poised to act unilaterally. The better approach, writes PFF's Barbara Esbin, would be an "extreme makeover" of the Communication Act—one which focuses on technological neutrality, competition theory and consumer protection, eliminating regulation based on service-specific "titles" aided by uncertain doctrines such as "ancillary jurisdiction." The D.C. Circuit's recent Comcast v. FCC decision "demonstrates conclusively why we need to begin today the debate over the appropriate framework for communications regulation in the 21st Century."

In "Ancillariness, the Definition Wars, and the Next Communications Act," Esbin provides a concise retrospective of the FCC's attempts to create a minimally-regulated framework for broadband Internet services by classifying all Internet access services as "information services," regardless of the identity of the provider or technology used, together with light regulation under its limited implied or "ancillary" jurisdiction. The FCC justified this approach as consistent with the de-regulatory policies of the Telecommunications Act of 1996, the terms of the statutory definitions and the presence of marketplace competition. The agency's recent regulatory about-face, which was unanimously rejected in the D.C. Circuit's Comcast v. FCC ruling, should have opened the door to reconsideration by Congress of the proper policy framework for the future, not an effort by the FCC to pigeonhole the Internet into yesterday's regulatory framework.

In addition to affecting the FCC's proposed attempts to regulate Internet providers, Esbin writes, the Comcast opinion also "points up the limitations of the FCC's current regulatory powers under a service and technology-based regulatory framework in light of Congress' failure to expressly grant the agency authority to regulate the provision of Internet services."

With the convergence of all media and communications services on the Internet, the present regulatory framework only gets harder to justify, Esbin argues. To rectify this, she urges that the service-specific regulatory framework of the current Communication Act be replaced by a new approach, addressing marketplace concerns based on a foundation of technology-neutral competition theory together with basic consumer protections tailored to the dynamic Internet marketplace. Esbin concludes that though this "is virtually impossible to do under today's Communications Act ... it should certainly form the basis for debate about the Act of tomorrow."

The paper may be viewed online here. For further information, please contact Mike Wendy at mwendy@pff.org.

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.