Comcast: Not-So-Brief Brief Roundup
We’ve previously covered the challenge to the FCC’s 2008 Order declaring Comcast’s network management practices unreasonable and discriminatory. The FCC recently filed its brief to the D.C. Circuit, as have amici and intervenors. Here’s a rundown of those briefs.
BRIEF FOR RESPONDENTS FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED STATES OF AMERICA
The main thrust of the Commission’s brief, not surprisingly, is that its actions are well within the traditional bounds of its subject matter jurisdiction and the scope of its ancillary authority. Because Congress intended the Commission to regulate “rapidly evolving communications technologies,” it argues that its authority is necessarily broad and flexible.
The exercise of ancillary authority, according to the Commission, requires two elements. First, the subject matter must fall within the agency’s general grant of jurisdiction. Second, the regulation must be “reasonably ancillary to the effective performance of the Commission’s various responsibilities.” The first of these requirements, general subject matter jurisdiction, is not disputed.
The Commission offers several bases upon which it argues its 2008 Order is a proper use of its ancillary authority. First, the Commission notes that the Supreme Court in Brand X concluded that the FCC can exercise authority over information service providers like Comcast under its Title I ancillary jurisdiction. The Commission also points to a number of statutory provisions it claims define federal internet policy and justify the use of ancillary authority. According to the FCC, section 230(b) of the Communications Decency Act defines a policy of “maximizing user control over the receipt of Internet content,” a policy inconsistent with Comcast’s surreptitious disruption of subscriber communications. Similarly, section 706(a) of the Telecommunications Act of 1996, 47 U.S.C. § 1302(a), requires the FCC to “encourage the deployment on a reasonable and timely basis of advanced communications capability,” a provision that confers the FCC “significant … authority and discretion to settle on the best regulatory or deregulatory approach to broadband.” Ad Hoc Telecom. Users Comm. v. FCC, 572 F.3d 903, 906-907 (D.C. Cir. 2009). Likewise, Congress’s goal of “mak[ing] available, so far as possible, to all the people of the United States … a rapid, efficient, Nation-wide and world-wide wire … communication service … with adequate facilities at reasonable charges,” 47 U.S.C. § 151, imposes “responsibilities” that the Commission is “required” to pursue.
Aside from their impact on internet communication, Comcast’s practices are likely to alter the markets for both traditional telephone and broadcast services. Internet based video distribution and voice service both serve as competitors to existing services heavily regulated by the FCC. Given the interrelated nature of these services, the FCC maintains that “clandestine network-blocking practices such as Comcast’s could undermine the Commission’s regulatory goals for virtually every sector of communications media, from the Internet, to cable and broadcast television, to voice communications.”
These justifications aside, the FCC argues Comcast is estopped from challenging its regulatory authority over Comcast’s practices because Comcast itself successfully argued in Hart v. Comcast, No. 07-06350 (N.D. Cal.), a class action challenging Comcast’s practices under California law, that “the very allegations that fuel this lawsuit” were before the FCC and “within [its] subject matter jurisdiction.”
In response to Comcast’s procedural challenge the the FCC’s decision to rely on adjudication rather than rulemaking, the Commission argues it properly exercised its discretion. Rather than developing broad, industry wide rules, the Commission chose to take more cautious first steps by targeting only Comcast’s practices. Responding to Comcast’s argument that it received inadequate notice, the Commission argues that it imposed no penalty on Comcast, which ceased its activities voluntarily and faced no monetary penalty. Moreover, Comcast received notice, both in the form of the FCC’s prior Policy Statement and specific warnings to Comcast when the Commission approved its acquisition of another cable provider that discriminatory network management would arouse scrutiny.
The Speta/Robinson/PFF brief argues that the FCC’s 2008 Order “greatly expands the Commission’s authority by regulating a communications service that is not an adjunct to and therefore closely connected to services that the Communications Act explicitly places within the agency’s regulatory powers.”
Amici recommend a narrow understanding of the Commission’s ancillary jurisdiction. They argue that ancillary jurisdiction, an invention of the FCC, is appropriate only where exercised “over an adjunct to a service over which the agency had clear and explicit authority.” Cable television, for example, was the proper subject of ancillary authority only because at the time “cable was completely dependent on the retransmission of broadcast television signals.”
Here, they argue the regulation of Comcast’s practices is not “directly tied to regulated services.” Without an independent grant of statutory authority for such action, they argue the Commission lacks the power to interfere with Comcast’s efforts to manage its network. With respect to Section 230(b), the FCC’s primary statutory hook for ancillary authority, amici are dismissive. “The five policy statements in Section 230(b) are just that – mere statements of policy and not law. Even then, they are so vague as to be purely atmospheric if not altogether meaningless as guides for affirmative regulatory action.” Moreover, they maintain that the Communications Act instead reflects Congress’s desire for an unregulated internet.
The Commission’s understanding of its authority, according to amici, is one defined by “completely discretionary and yet completely unlimited regulatory powers over information services.” In the name of efficiency, decreased consumer costs, or enhanced consumer service quality, the FCC could impose any regulation it chooses on the providers of information services, including the intervention on par with common carrier classification.
The intervenors’ brief argues that in light of the ambiguity of the statutory provisions that provide the basis for ancillary jurisdiction, Chevron deference is appropriate. The FCC, therefore, only needs to show that its interpretation of those provisions is reasonable. Chevron USA, Inc. v. NRDC, Inc., 467 U.S. 837 (1984).
Intervenors focus on the Commission’s statutory power to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with the Act, as may be necessary in the execution of its functions.” They argue that “necessary” and “execution of its functions,” are ambiguous, and the Commission’s reading of the statute need only be reasonable.
In contrast with the PFF brief above, the intervenors maintain that the 2008 Order is consistent with the FCC’s prior assertions of ancillary jurisdiction and “a long line of cases” upholding such assertions. The intervenors chastise both Comcast and PFF for omitting any reference to eight cases upholding ancillary authority, six of which were decided by the D.C. Circuit.
Finally, the intervenors note the potential consequences of Comcast’s challenge to the Commission’s ancillary authority. If successful, this strategy could compel the FCC to reclassify broadband internet access as a telecommunications services, rather than an information service. Such a reclassification would place Comcast squarely within the more burdensome regulatory structure of Title II of the Communications Act, an outcome Comcast is doubtless eager to avoid.
Unlike those above, this brief focuses on the policy implications of Comcast’s conduct and the need for regulatory intervention.
Amici offer two primary rationales for regulation. First, they argue that discriminatory network practices like those adopted by Comcast reduce the innovative and economic potential of the internet. Such practices will introduce uncertainty that could scare away potential funders of new ventures and distort markets by disadvantaging offerings that compete with those of established providers like Comcast.
Second, amici suggest Comcast’s actions undermine the potential of speech enabling technologies like peer to peer distribution networks. Because such technologies enable cheap, efficient, worldwide distribution of speech, they enable broadly democratic cultural participation. Because Comcast targeted these particular technologies, they lead to particularly troubling harms.
See also:
- Matthew Lasar, FCC: Congress said we could spank Comcast for P2P blocking, Ars Technica (Sept. 23, 2009).