Lawyer Questions FCC's Authority on Net Neutrality Rules

The U.S. Federal Communications Commission lacks the statutory authority to make network neutrality rules prohibiting broadband providers from selectively blocking or slowing some Internet traffic, a former U.S. solicitor general said Wednesday.

If the FCC wants the authority to proceed with its net neutrality, or open Internet, rulemaking proceeding, it should go to Congress to get permission, said Gregory Garre, who served as solicitor general, the U.S. government's lawyer before the Supreme Court, under former President George W. Bush.

Congress, however, has considered several net neutrality bills in recent years and failed to pass them, said Garre, now a partner in the Latham and Watkins law firm. The FCC has not asked Congress for authority to pass net neutrality rules since the agency proposed them last October because "it must not feel it would get what it asked for," he said during a debate on net neutrality sponsored by the Federalist Society for Law and Public Policy Studies, a conservative legal think tank.

If the FCC wants to create new Internet regulations, it should have the backing of Congress, Garre added. "It would be appropriate for the FCC to go to Congress," he said. "This isn't some minor regulatory issue we're talking about. The FCC itself has described the Internet as something that 'has transformed our nation's economy, culture and democracy.'"

Garre called the FCC's proposed net neutrality rules a potentially "boundless" power grab, but Gigi Sohn, president of net neutrality advocate Public Knowledge, said the FCC has a couple of ways to justify net neutrality rules. While it may be difficult to get a bill passed in Congress this year, the FCC could simply decide to reverse its 2002 decision that Internet service was classified as a minimally regulated information service, she said. Garre suggested it would be difficult for the FCC to change its 2002 decision and make it stand up in court.

The FCC would need a reasonable justification for reversing course, but U.S. courts have held that agencies can change their minds and their regulations over time, she said.

If the FCC has no authority to regulate Internet service providers, then it would not have authority to put broadband consumer protections in place, create privacy rules protecting broadband customers or redirect money from the Universal Service Fund (USF), which subsidizes telephone service in rural areas, for broadband, Sohn said. Broadband provider AT&T and trade group the National Cable and Telecommunications Association have been "tying themselves into knots" trying to find FCC authority to redirect USF funds to broadband without also giving the agency authority to pass net neutrality rules, Sohn said.

The FCC needs to pass net neutrality rules to protect consumers and Internet application providers, Sohn said.

If the FCC looks for broad authority to regulate broadband without reversing its decision to classify broadband as an information service, that's "just an invitation for more litigation," Sohn said. "It puts the network providers in the driver's seat, and it hurts edge innovators and consumers, because they're left unprotected. While you go running to Congress, trying to get authority, consumers are screwed."

Garre's comments came the same day that the Washington Post quoted FCC Chairman Julius Genachowski as saying he believes the agency has the authority it needs to proceed with net neutrality rules. "We are focused on developing the right policies and the FCC will have the authority to implement the right policies," Genachowski told the Post.

But Helgi Walker, a partner in the Wiley Rein law firm, suggested that the FCC could make a case that it has net neutrality authority over broadband without changing its 2002 decision on broadband classification. Courts have granted the FCC "ancillary jurisdiction" to make rules beyond those approved by Congress, she said, but the agency has to do the "hard work" to make the case that the rules are necessary.

The FCC, however, tried to enforce net neutrality policy principles when it told Comcast in mid-2008 that it could not block or slow peer-to-peer traffic, said Walker, who has represented Comcast in a court challenge to that order. "It's nonsense to talk about violating a policy statement," she said. "They enforced a policy statement against us -- no rule, no regulation, no agency precedent, no law, no nothing."

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