FCC Should Ask Congress for Authority to Address Internet Fast Lane Issue

Published November 6, 2014

If the FCC believes it needs additional legal authority to ensure no Internet “fast lanes” or “paid prioritization,” it should ask Congress for the authority to do it.

That’s what agency “creatures of Congress” do when their original legal authorities have obsolesced and need modernization to remain functional. It’s Congress’ constitutional role to set American communications/Internet policy; it’s the FCC’s role to implement and adjudicate it. That’s basically why the U.S. D.C. Court of Appeals overturned the FCC in 2010 in Comcast v. FCCand again in 2014 in Verizon v. FCC.

Now according to the WSJ and NYT, the FCC is considering ignoring Congress a third time on the same core question of the FCC’s broadband authority.

The FCC is floating the prospect of regulating the Internet backbone as a “Title II” common carrier utility for the first time. The proposal would bifurcate the Internet into a lightly-regulated, “retail,” Internet-tier, and a heavily-regulated, “wholesale,” common-carrier Internet-tier.

Let’s try a medical analogy to simplify this complicated FCC proposal in order to better understand it and its risks.

Think of the Internet as the information circulatory system of the world’s body, where Internet users are the world’s heart, edge providers are the body’s other organs and extremities, and the Internet’s American doctor is the FCC set on trying to prevent the potential discrimination diseases of “fast-lane-itis” and “paid-prioritization-itis.”

The FCC “doctor” is proposing to treat these potential diseases by experimentally treating some of the bloodstream very differently from the rest of the bloodstream.

First, the FCC doctor will continue to treat the blood cells leaving the heart via arteries (i.e. Internet users’ “retail” upstream traffic) with no new medical treatment (i.e. no new heavy utility-regulation.)

Second, however, to prevent potential blood inequality diseases that have not occurred yet, the FCC doctor proposes to treat the blood flowing through veins back to the heart(i.e. edge providers “wholesale” downstream traffic to Internet users), with the most potent medicine available (i.e. Title II common carrier utility price regulation.)

Then Dr. FCC promises that the harshest medicine and most invasive monitoring of only the blood cells (traffic bits) flowing (downstream) through veins and not the blood cells (traffic bits) flowing (upstream) through arteries, will have no side effects or bring any harm to the behavior, capabilities, strength or vitality of any part of the experimentally-treated body.

In addition, Dr. FCC professes confidence and reassures the patient, families and communities (i.e. the guinea pigs here) that this time the medical review boards (i.e. the Courts and Congress) will not reject and stop Dr. FCC’s harshest medical experimentation like they have previously, in ruling illegal previous FCC experimental treatments in 2010 and 2014.

If this sounds like a painful, complicated, and risky experimental procedure — it is.

When one analogizes what the FCC wants to do with the Internet ecosystem to what a doctor would do to a patient’s body, it becomes more clear that the FCC’s proposed treatment is more about making the FCC more important and necessary, and less about the health and best interests of the Internet and Internet users, and even less about what the medical review boards have already decided is best to not harm patients.

The FCC doesn’t need to make this so complicated and risky.

The choice should be simple – “do no harm” – doctors’ well-known Hippocratic Oath.

The FCC can “do no harm” legally by treating 90% of the perceived potential net neutrality problem under its court-approved Section 706 authority, with the assent and cooperation of the Internet infrastructure industry that would be so regulated, and then ask Congress for the 10% of legal authority that the FCC does not have, but believes it needs in order to protect the free and open Internet.

Or the FCC can cause incalculable harm by using a Rube Goldberg hybrid-approach to address 10,000% of the perceived potential net neutrality problem by changing the legal foundational status of the Internet to utility regulation with predictably strong opposition from the affected Internet infrastructure industry, the Courts and Congress.

Choose wisely, FCC. Do what’s legal and right. Respect the Constitution, Congress, the Courts, and the law.

And do no harm!


FCC Open Internet Order Series

Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]

Part 2: Why FCC proposed net neutrality regs unconstitutional, NPR Online Op-ed [9-24-09]

Part 3: Takeaways from FCC’s Proposed Open Internet Regs [10-22-09]

Part 4: How FCC Regulation Would Change the Internet [10-30-09]

Part 5: Is FCC Declaring ‘Open Season’ on Internet Freedom? [11-17-09]

Part 6: Critical Gaps in FCC’s Proposed Open Internet Regulations [11-30-09]

Part 7: Takeaways from the FCC’s Open Internet Further Inquiry [9-2-10]

Part 8: An FCC “Data-Driven” Double Standard? [10-27-10]

Part 9: Election Takeaways for the FCC [11-3-10]

Part 10: Irony of Little Openness in FCC Open Internet Reg-making [11-19-10]

Part 11: FCC Regulating Internet to Prevent Companies from Regulating Internet [11-22-10]

Part 12: Where is the FCC’s Legitimacy? [11-22-14]

Part 13: Will FCC Preserve or Change the Internet? [12-17-10]

Part 14: FCC Internet Price Regulation & Micro-management? [12-20-10]

Part 15: FCC Open Internet Decision Take-aways [12-21-10]

Part 16: FCC Defines Broadband Service as “BIAS”-ed [12-22-10]

Part 17: Why FCC’s Net Regs Need Administration/Congressional Regulatory Review [1-3-11]

Part 18: Welcome to the FCC-Centric Internet [1-25-11]

Part 19: FCC’s Net Regs in Conflict with President’s Pledges [1-26-11]

Part 20: Will FCC Respect President’s Call for “Least Burdensome” Regulation? [2-3-11]

Part 21: FCC’s In Search of Relevance in 706 Report [5-23-11]

Part 22: The FCC’s public wireless network blocks lawful Internet traffic [6-13-11]

Part 23: Why FCC Net Neutrality Regs Are So Vulnerable [9-8-11]

Part 24: Why Verizon Wins Appeal of FCC’s Net Regs [9-30-11]

Part 25: Supreme Court likely to leash FCC to the law [10-10-12]

Part 26: What Court Data Roaming Decision Means for FCC Open Internet Order [12-4-12]

Part 27: Oops! Crawford’s Model Broadband Nation, Korea, Opposes Net Neutrality [2-26-13]

Part 28: Little Impact on FCC Open Internet Order from SCOTUS Chevron Decision [5-21-13]

Part 29: More Legal Trouble for FCC’s Open Internet Order & Net Neutrality [6-2-13]

Part 30: U.S. Competition Beats EU Regulation in Broadband Race [6-21-13]

Part 31: Defending Google Fiber’s Reasonable Network Management [7-30-13]

Part 32: Capricious Net Neutrality Charges [8-7-13]

Part 33: Why FCC won’t pass Appeals Court’s oral exam [9-2-13]

Part 34: 5 BIG Implications from Court Signals on Net Neutrality – A Special Report [9-13-13]

Part 35: Dial-up Rules for the Broadband Age? My Daily Caller Op-ed Rebutting Marvin Ammori’s [11-6-13]

Part 36: Nattering Net Neutrality Nonsense Over AT&T’s Sponsored Data Offering [1-6-14]

Part 37: Is Net Neutrality Trying to Mutate into an Economic Entitlement? [1-12-14]

Part 38: Why Professor Crawford Has Title II Reclassification All Wrong [1-16-14]

Part 39: Title II Reclassification Would Violate President’s Executive Order [1-22-14]

Part 40: The Narrowing Net Neutrality Dispute [2-24-14]

Part 41: FCC’s Open Internet Order Do-over – Key Going Forward Takeaways [3-5-14]

Part 42: Net Neutrality is about Consumer Benefit not Corporate Welfare for Netflix [3-21-14]

Part 43: The Multi-speed Internet is Getting More Faster Speeds [4-28-14]

Part 44: Reality Check on the Electoral Politics of Net Neutrality [5-2-14]

Part 45: The “Aristechracy” Demands Consumers Subsidize Their Net Neutrality Free Lunch [5-8-14]

Part 46: Read AT&T’s Filing that Totally Debunks Title II Reclassification [5-9-14]

Part 47: Statement on FCC Open Internet NPRM [5-15-14]

Part 48: Net Neutrality Rhetoric: “Believe it or not!” [5-16-14]

Part 49: Top Ten Reasons Broadband Internet is not a Public Utility [5-20-14]

Part 50: Top Ten Reasons to Oppose Broadband Utility Regulation [5-28-14]

Part 51: Google’s Title II Broadband Utility Regulation Risks [6-3-14]

Part 52:  Exposing Netflix’ Biggest Net Neutrality Deceptions [6-5-14]

Part 53: Silicon Valley Naïve on Broadband Regulation (3 min video) [6-15-14]

Part 54: FCC’s Netflix Internet Peering Inquiry – Top Ten Questions [6-17-14]

Part 55: Interconnection is Different for Internet than Railroads or Electricity [6-26-14]

Part 56: Top Ten Failures of FCC Title II Utility Regulation [7-7-14]

Part 57: NetCompetition Statement & Comments on FCC Open Internet Order Remand [7-11-14]

Part 58: MD Rules Uber is a Common Carrier – Will FCC Agree? [8-6-14]

Part 59: Internet Peering Doesn’t Need Fixing – NetComp CommActUpdate Submission [8-11-14]

Part 60: Why is Silicon Valley Rebranding/Redefining Net Neutrality?  [9-2-14]

Part 61: the FCC’s Redefinition of Broadband Competition [9-4-14]

Part 62: NetCompetition Comments to FCC Opposing Title II Utility Regulation of Broadband [9-9-14]

Part 63: De-competition De-competition De-competition [9-14-14]

Part 64: The Forgotten Consumer in the Fast Lane Net Neutrality Debate [9-18-14]

Part 65: FTC Implicitly Urges FCC to Not Reclassify Broadband as a Utility [9-23-14]

Part 66: Evaluating the Title II Rainbow of Proposals for the FCC to Go Nuclear [9-29-14]

Part 67: Why Waxman’s FCC Internet Utility Regulation Plan Would Be Unlawful [10-5-14]

Part 68: Silicon Valley’s Biggest Internet Mistake [10-15-14]

Part 69: Will the FCC Break the Internet? [10-22-14]

Part 70: Net Neutrality Has Become an Industrial Policy [10-31-14]


[Originally published at PrecursorBlog]