Archaic Telecom

Ancillary Authority, Estoppel Gotchas, and New Statutes

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I had two shots of espresso and then  tackled  a few parts of the U.S. Court of Appeals decision favoring Comcast.   I am an  informed technologist with no legal training.   It does appear to this blogger that the FCC’s case was—sigh—very weak.

In navigating this legalistic obstacle course and trying to unravel the thinking of a a generation of technology challenged attorneys, you are forced to make the unlikeliest of associations. First, telecommunications means voice and cable TV, but not data.  Data is called information services, and voice can be an information service when it is VoIP.  (Hmm, not sure I want to know how the FCC viewed the phone systems’ digital TDM protocols.)

And then voice has something like cooties, and can contaminate the data part, turning it into telecommunications. Follow?

To review, the FCC claimed it had the authority to prevent Comcast from interfering with the peer-to-peer activities of some of its customers.  The FCC issued an order that Comcast initially followed, but then, like many before, it took the FCC to court.

In its argument, the FCC claimed authority to issue its “net neutrality” order, not on any specific statutes  embedded in the bedrock of  Communications Act of 1934 and 1996, but on something more ethereal.

So what did the FCC argue to this  appeals court? It had ancillary authority, based on these words from 1934 in section 4(i):

“The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions…”

Which is to say, that the FCC has implicit power related to its primary role of regulating communications.  Specifically, the FCC referred to US Code 230(b), which I presume was added as part of the Telecommunications Act of 1996 and which states that while individual can block offensive materials on the Internet, but that it is the policy of the US government “…to encourage the development of technologies that maximize user control over what information is received…”

Before we get to the ancillary theory, the FCC issued  a kind of Monty Python-esque challenge to the court, saying that  Comcast case had to pass two thresholds for it even to be considered:

Threshold the First: Using a Supreme Court case, National Cable and Telecommunications v. Brand X, which clarified aspects of the voice-data contamination issue —our highest court said that because telecommunications is occurring in an ISP’s cable, the FCC may have the authority to regulate the data part— the FCC claimed  therefore it already had the authority to tell Comcast that it couldn’t limit peer-to-peer data traffic,  and therefore this case was bogus  (it’s a legal term).

Threshold the Second: The FCC threw in a gotcha argument. They claimed  Comcast admitted earlier in a civil case that the FCC had authority to regulate Internet data.  The legal term for a party saying one thing one day, changing its mind on another and being held responsible for the original opinion is called estoppel. You can translate that roughly as “Nah Nah Nah, we caught you!”

To keep this post mercifully short, I’ll cut to the chase: the court  threw out the above threshold arguments, estoppel (no inconsistency) and the Supreme Court contamination suggestion (too broad an interpretation).

Then the court addressed the  more important question of ancillary authority, which the  FCC has used successfully on other occasions.  This time it didn’t work. The court said the FCC had to connect the ancillary authority to more than a vague policy ideal as expressed in 230(b), but to an actual statute—it has to be ancillary to something meatier.  Case closed.

My take: the FCC knew they would lose this one. I think in their heart-of-hearts Genachowksi realizes the  FCC will need Congress to give them new explicit statutes for net neutrality.

I agree with Chairman Copps that the FCC can’t do the “ancilliary” dance anymore. Yes, broadband (data)  in any normal world is telecommunications, but I’m afraid this word carries so much regulatory baggage that a mere reclassification (as Copps suggests)  is not a wise thing to do.

Chairman Copps,  Chairman Genachowski,  please read Andrew Tanenbaum’s Computer Networks, study the protocol stack model, and go to Congress with suggestions for reasonable play-nice rules for the Internet.

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