The suit by Verizon Communications against the Federal Communications Commission on Jan. 21, 2011, should come as a surprise to no one. The company has made no secret of its dislike for the FCC’s involvement in the net neutrality issue, and most people expected that one of the major Internet carriers would take action.
Since Comcast was occupied buying NBC Universal, that left Verizon as the likely choice. As a result, the company sued the FCC in the U.S. District Court for the District of Columbia, which is the same court that ruled against the FCC in the Comcast case that started this latest round of net neutrality machinations.
In April, the court found that the FCC had overstepped its authority in trying to regulate how Comcast managed (and sometimes blocked) Web traffic on its network. In its suit, Verizon is claiming that the latest round of net neutrality rules is just more of the same thing-that if the FCC didn’t have the authority in the Comcast case, it still doesn’t.
The FCC, of course, disagrees, and while the agency isn’t speaking on the record, statements made at the time the net neutrality rules were adopted indicate that the commission thinks it has found a legal framework for regulating Internet delivery. In addition, the FCC has claimed that it has a congressional mandate to expand broadband Internet connections and to ensure that consumers have access to all legal Internet content.
The problem with the FCC’s position is that Congress didn’t specifically give the FCC the authority to actually regulate how service providers deliver Internet content. Instead, the goal was to ensure availability, meaning that the FCC was tasked with making sure that poor, rural and other disadvantaged consumers and businesses weren’t bypassed in a search for the best ROI. This appears to mean that while the FCC can require that an Internet provider must serve everyone in its area, it can’t create specific rules as to how the ISP actually does that.
The FCC’s position wasn’t helped by the manner in which its chairman chose to get his rules adopted. FCC Chairman Julius Genachowski took a number of dubious steps as part of the process. Those steps included withholding thousands of comments from the other (Republican) commissioners until only minutes before the comments period closed. Then when it came time to seek approval, Genachowski withheld the full text of the proposed rules until only a few minutes before they had to be voted on. None of the commissioners was given time to read the rules before the vote, and the result was two Democratic votes approving the rules, one Democratic vote with significant reservations and two Republican votes against approval.
FCC Rule to Keep Net Neutrality in Limbo for Years
If this looks like the rules were rammed through with as little input as possible, consider that the actual public release of the rules happened very late in the day before a major holiday, when virtually no one would be able to examine them for several days. If this seems like old-fashioned, closed-door, smoke-filled-room politics, one can almost see the smoke wafting in the air.
The bottom line, and Verizon’s point in the suit against the FCC, is that the commission cannot make laws. That power is reserved for Congress. Previous Congresses were unable or unwilling to define what constituted net neutrality and, more important, they were unwilling to give the FCC the power to do so. But instead of simply following the law, the FCC Democratic majority decided to force through its net neutrality ideas while Congress and most of the other legal and governmental authorities were in recess for the Christmas holidays. Perhaps Genachowski thought nobody would notice.
The problem is, everyone noticed. Worse, because the FCC forced through its one-man-rule on net neutrality, it has performed a very real disservice to the valid concerns of consumer groups and the backers of net neutrality. That’s because his old-style political approach to regulation will not only bring about certain defeat of the FCC’s rules, but it also means that there’s still nothing on the horizon that will legally limit Internet providers’ actions. If Comcast wants to stop BitTorrent again, it can. If Verizon wants to block NetFlix in favor of its own movie service, it can do that too.
While most ISPs have said they don’t intend to block access to any legal content on the Internet, there are a lot of ways to interpret what it means to block something. Throttling a movie service to near analog modem speeds, for example, may not be technically blocking it, but it has the same effect. But without some kind of net neutrality rules that are actually enforceable, it’s legal to do that.
Unfortunately, when private companies are controlling access to the flow of information and ideas, there’s always a temptation to maximize profits. While it’s unlikely that Verizon could get away with blocking, say, Google in favor of Yahoo, there’s a lot that the company could do if it chose to. Because most cable providers have an effective monopoly in their areas, and as a result also control most Internet access, there’s not much customers can do if their provider decides to play games with content.
And now, because of a series of ill-considered actions on the part of the FCC chairman, it’s more likely than ever that these customers will remain out of luck indefinitely. In effect, Genachowski has ensured that the one thing he claimed to be against will certainly happen. Maybe, if we’re lucky, we’ll see Congress create the structure and the authority that needs to be there, but I wouldn’t hold my breath waiting for Congress to unscrew what the FCC screwed up.