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Here’s the question: is it meaningful or important for a federal agency to have regulatory authority over high-speed Internet access connectivity?

Right now, the FCC (which is supposed to oversee “communication over wire and radio”) has no clear authority to make policy about high-speed Internet connectivity.

(Transport is different than content—this post is not about applications or uses of this connectivity. Be careful when you talk about the Internet “ecosystem,” because transport has been historically and remains different from everything else. I’m talking about the capacity to send packets from Point A to Point B, whether provided by wired or wireless providers.)

Although the Administration has often said that it has the goal of bringing affordable Internet access to all Americans and cares about the open Internet, the current Commission doesn’t have the levers it needs to actually operate on these goals.

The Commission said more than six months ago that the D.C. Circuit’s Comcast decision undermined its ability to undertake efforts “aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth, and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy.” Sounds like a problem, right?

The FCC has a few routes it could travel to fix this situation, but only one of them is sustainable over the long term.

  • It’s pretty clear that no Technical Advisory Group or other self-regulatory effort aimed at “reasonable network management” could take the place of actual agency authority to ensure that all Americans have affordable Internet access.
  • It’s also clear that a “once more with feeling” use of the agency’s “ancillary” jurisdiction (the same path criticized so sharply by the D.C. Circuit earlier this year) would be piling uncertainty upon uncertainty. That court said that use of ancillary authority is appropriate “in order to prevent frustration of a regulatory scheme expressly authorized by statute,” and it’s extraordinarily difficult to argue that rules about universal service, transparency of billing practices, privacy, and competition/leased access are necessary under that standard.
  • Finally, it’s clear that using some other narrow hook in the Communications Act (like Section 706) won’t support the Commission’s authority to do all the things it says it needs to do.

The only sustainable path towards real authority over transmission (again, this isn’t “regulating the Internet,” it’s just regulating the quasi-public sidewalks along which every single one of our conversations take place these days) is to re-label these services as “telecommunications.”

We did this for Internet access service in 1995, for DSL. The Clinton FCC did it again in 1998-99, requiring “line-sharing” by telephone companies so that competing ISPs could use their lines. It would be appropriate to do it now.

What’s the remaining option? To trust the giant carriers that dominate Internet access. They’d prefer a planned communications system in which they do most of the planning—an orderly, well-managed, scarce resource. It would make more sense for the nation to have a communications system in which competition prevails.

By Susan Crawford, Professor, Cardozo Law School in New York City

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