Tuesday, August 12, 2008

"The Most Significant and Controversial Assertion of Agency Authority"

Last Friday, I moderated a panel entitled, "Net Neutrality Regulation: Perspectives on What It Means and Whether It Is Necessary," at the American Bar Association's annual meeting in New York. The program was sponsored by the ABA's Section of Administrative Law and Regulatory Practice. The presentations, and the back-and-forth exchanges among the panelists, were some of the most interesting and informative I have heard in a long while. The panelists were Marvin Ammori, General Counsel, Free Press; Link Hoewing, Vice President of Internet and Technology, Verizon; James Speta, Professor of Law, Northwestern University; and Joe Waz, Senior Vice President, External Affairs and Public Policy Counsel, Comcast.

Not surprisingly, much of the discussion centered on the FCC's August 1 action sanctioning Comcast for what the FCC claims to be discriminatory interference with Comcast's subscribers access to BitTorrent's peer-to-peer applications. When the audio of this ABA Continuing Legal Education program becomes available later, I will provide a link for those that might be interested. But, for now, I want to highlight two statements by members of the panel that struck me as very significant, and worthy of further attention and reflection.

Professor Speta, one of the nation's leading telecom scholars, teaches courses in telecommunications and Internet policy and administrative law. He is also a member of FSF's Board of Academic Advisors. Near the outset of his remarks, Professor Speta declared: "The FCC's Comcast action is the most significant and controversial assertion of authority by an agency since the FDA's effort to extend its jurisdiction over tobacco." In the course of his remarks, Professor Speta indicated that he believes, on occasion and depending on the circumstances, there may be instances of Internet service provider conduct that call for net neutrality-like remedies in the context of post hoc adjudicatory proceedings that sound in antitrust jurisprudence. But he professed considerable skepticism that the Comcast matter presented such an instance.

In any event, Professor Speta's characterization of the FCC's action as the most significant and controversial assertion of agency authority since the FDA's attempt to extend its jurisdiction over tobacco ought to give pause. In that case, even though Congress had regulated tobacco in many different ways for many years -- and had considered and rejected legislative proposals to give the FDA authority to regulate tobacco -- the FDA proceeded to assert authority by classifying tobacco as a "drug." Suffice it to say for present purposes that the FDA's regulatory grab did not turn out well. In 2000, the Supreme Court rejected the agency's jurisdictional assertion in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). Before the FCC acted in the Comcast case, I argued in pieces here and here that, in light of the changed circumstances since the complaint against Comcast was filed by Free Press, and the uncertainty surrounding the FCC's "ancillary" authority to regulate the practices of Internet providers, the Commission should have dismissed the complaint without prejudice.

Speaking of Free Press, Mr. Ammori made the second statement I wish to highlight. Near the beginning of his remarks, he said that one of Free Press's goals is to make communications policy "more political." Now we all know that, in practice, the FCC, a so-called independent regulatory agency, does not operate consistently in accordance with the theoretical premises of such an agency. The theory of the Progressive-era reformers who envisioned the independent agencies like the FCC was that these agencies, by institutional design, would be insulated from ordinary politics, that their largely apolitcal regulatory decisions would be guided by the institutional expertise of the commissioners and staff.

I am one who has questioned the validity of the theoretical premises of the independent agencies on separation of powers grounds. Be that as it may, query whether it really makes sense to want to make decisions such as "net neutrality" more political. This is especially so when such decisions involve, as they inevitably will, and as they do in the Comcast case, highly technical questions concerning whether certain Internet practices constitute acceptable "reasonable network management" or prohibited "discrimination." It is certainly worth pondering whether making the decisional process "more political" in cases like Comcast's enhances the quality of agency decisionmaking. I doubt that Senator Clarence Dill and the other "founders" of the FCC would think so.