Wednesday, July 28, 2010

The FCC: "We Do Not Regulate the Internet"

The FCC issued a news release yesterday announcing it has launched a new easy-to-use Consumer Help Center. It says the new portal "will allow consumers to learn about different issues in telecommunications."

If you click on "Fact Sheet Library" and scroll down towards the bottom to "Internet", you'll find this interesting statement: "The FCC does not regulate the Internet or Internet Service Providers (ISP). You may contact your state consumer protection office or if there is possible fraud involved, you may contact the Federal Trade Commission."

I wrote about this identical statement on the FCC's website almost two years ago in this short piece, "The FCC's Misleading Disclosure Statement." I said then that, in light of the FCC's action sanctioning Comcast in the BitTorrent affair, that the no-Internet-regulation statement was certainly "inoperative." I suggested: "In the interest of accurate disclosure, I assume the FCC fairly promptly will correct the website statement."

No such luck.

It is true that, after April's Comcast decision in the D.C. Circuit, the FCC's authority to regulate Internet service providers in most regards is highly questionable. This is good. But at the time the agency sanctioned Comcast two years ago, despite the directly contradictory statement on its website, the FCC must have assumed it had authority to receive complaints regarding the practices of Internet providers and to regulate the ISPs.

Now that its legal authority to regulate the Internet and Internet service providers under ancillary jurisdiction has been cast in substantial doubt, the very same no-Internet-regulation statement remains posted on the FCC's consumer website. And the agency continues to direct consumers to state consumer protection offices and the FTC if they have complaints.

I do not believe, nor do I believe the FCC believes, that post-Comcast, the agency is entirely devoid of all ancillary authority to regulate the practices of Internet providers in all respects. Nevertheless, after the Comcast decision, the FCC surely is aware that it possesses much less authority to regulate Internet providers than it previously assumed it possessed when it sanctioned Comcast. So, in this sense, the FCC's posted no-Internet- regulation statement – which has remained unchanged throughout -- is considerably more accurate now then when I characterized it as misleading back in August 2008.

Of course, it is important to note that, especially since last October, the FCC has been doing whatever it can to find a way to impose net neutrality regulations on Internet providers, even to the point of proposing that they be classified as common carriers. All the while advising consumers it lacks authority to regulate the Internet or Internet providers. And, all the while, advising consumers, if they have a problem, to go to their state consumer protection office or the FTC.

Confused? Me too.

Someone needs to ask a good state consumer protection office, or perhaps the FTC, to sort this all out before the FCC gets itself in trouble for making false or misleading statements.

Or better yet: If the FCC were to abandon its efforts to regulate the Internet and Internet providers, at least until Congress grants it authority to do so, by bringing its actions into line with its web posting, the Commission would not risk getting into trouble for making misleading statements. And, in the bargain, the agency would be committing an act of extreme sound policy.