Deja vu All Over Again: Questions and a Few Suggestions on How the FCC Can Lawfully Regulate Internet Access

Abstract

This paper will examine the FCC’s March, 2015 Open Internet Order with an eye to assessing whether and how the Commission can successfully defend its decision in an appellate court. On two prior occasions, the FCC failed to convince a reviewing court that proposed regulatory safeguards do not unlawfully impose common carrier duties on private carriers. The Commission now has opted to reclassify broadband Internet access as common carriage, a decision sure to trigger a third court appeal. The FCC Open Internet Order offers several, possibly contradictory, justifications for its decision to apply Title II of the Communications Act, subject to extensive culling of the available common carrier regulatory safeguards. On one hand, the FCC invokes the so-called Chevron Doctrine, 467 U.S. 837 (1984), where courts defer to the expertise on a regulatory agency when the applicable statute lacks clarity and the agency reasonable acted to remedy ambiguities. However, elsewhere in its decision, FCC evidences no difficulty in applying the existing statutory service definitions and confidently asserting that Internet Service Providers (“ISPs”) clearly provide essential telecommunications services. The FCC appears able to interpret and apply existing service definitions created by Congress. Rather than have to act based on ambiguity, the Commission makes the case that ISP services, once deemed to fit within the information service classification, now unambiguously fit within the telecommunications service category. The paper notes that the FCC has acknowledged its mistakes in eliminating common carrier regulation of Internet access and in attempting to impose such safeguards without an explicit reclassification of what ISPs offer. However, at the very time the Commission seeks to invoke lawful and sufficiently expansive statutory authority, ISPs need substantial flexibility to customize services meeting specific customer requirements, particularly demand for bandwidth intensive video services. The paper concludes that the FCC’s best appellate court strategy lies in emphasizing changed circumstances in the Internet ecosystem, rather than ambiguity in the service definitions created by Congress. While stating its clear intent to forbear and streamline as never before, the FCC will have to convince the reviewing court that a complete evidentiary record clearly shows the Commission acted rationally in its decision to reclassify ISP service based on significant change in the how ISPs operate and what consumers require.