On Tuesday, April 6, 2010, the U.S. Court of Appeals for the D.C. Circuit handed down a dramatic rejection of the Federal Communication Commission’s current claim of authority over Internet access providers. For years the F.C.C. has argued that it has “ancillary authority” over cable and DSL network operators, and that under that theory it could enforce network neutrality policies as well as take a host of actions to encourage broadband deployment and protect broadband users. On Tuesday the Court ruled decisively that the F.C.C. had not justified its claim of ancillary authority.
(Side note: When the F.C.C. claims ancillary authority, it is arguing that Congress has empowered the F.C.C. to take certain actions because they are “ancillary” to the authority given explicitly by statute. For example, the F.C.C. claimed authority to regulate early cable television as “ancillary” to its authority to regulate broadcast television, arguing that cable could have such a profound effect on broadcast that authority over cable was necessary in order to effectively regulate broadcast. Congress eventually passed a law giving the F.C.C. explicit authority over cable.)
Tuesday’s decision does not mean the F.C.C. is now barred from protecting the Internet and its users against unfair network practices. In fact, one of the lawyers who argued the case says that this move is a blessing in disguise for the F.C.C. and its supporters, because it clarifies the status of the tenuous “ancillary authority” argument, making it clear that the F.C.C. will need to establish its authority on what may be sounder footing. At any rate, there are other sources of authority already present in the law, or the F.C.C. could try a new argument for “ancillary authority” (though this is highly unlikely). Either way, the F.C.C. can’t just give up on the communications network of the 21st Century. It will have to decide on what ground it should proceed, and it can’t wait for Congress. We will be working with our friends at ALA, EDUCAUSE, the higher education community, and the Open Internet Coalition to determine how we can best help the F.C.C. in this process. More on the stakes for libraries below the fold.
It is essential that the F.C.C. establish firm authority to act to protect Internet users. Library groups have called repeatedly on the Commission to protect the open Internet. As we said in those filings, several key library and educational values and interests are at stake, including:
The fundamental nature of the Internet. The Internet was more or less invented on university campuses. (Sorry, Al.) And it was invented with neutrality built into its basic architecture. So it’s especially heartbreaking to people in the education world to imagine the Net turned into a proprietary, corporate-controlled network on the model of cable television (this neat graphic gives you an idea of how that might look).
Academic Freedom. The Internet is an unprecedented forum for free expression. A non-neutral Internet would make network operators into gatekeepers with power to decide what people read, watch, and listen to. If that gatekeeper’s primary goal is to maximize profits (and shareholders would have a cause of action in court against any corporation that did not adopt that goal) then voices that do not contribute to those profits could be marginalized or eliminated altogether.
Access to Educational Opportunity. The Internet makes access to education possible in ways we couldn’t have imagined even a decade ago. Distance learning, continuing education, access for students who live far from colleges and universities, and on and on — all presume that students off campus will have access to affordable, open broadband connections. If network operators can act as trolls under the Internet bridge and charge differential tolls for access to their users (in addition to the fees they already charge for bandwidth), educational voices may be relegated to Internet slow lanes, or priced off the Net.
So the stakes are quite serious. But we are hopeful that the F.C.C. will find a new (perhaps a better) source of authority over broadband networks.