Hard Cases Make Bad Law: On Regulatory Bits and Torrents--Part II

Back on July 17, when I first became aware that FCC Chairman Kevin Martin wanted to get a Commission majority to issue an order holding unlawful Comcast’s actions in last November’s BitTorrent affair, I wrote this piece, “Hard Cases Make Bad Law: On Regulatory Bits and Torrents.” My view hasn’t changed since then, and now we’re a day away, to steal a phrase, from Day One -- as in the first day the FCC, with a Bush-appointed chairman leading the way, may take a major step towards regulating the Internet.

The arguments that I made in the July 17 piece have been echoed in pieces in recent days by FCC Commissioner Robert McDowell, “Who Should Solve This Internet Crisis,” and the Wall Street Journal editorial board, “FCC.politics.gov.” And I just saw this July 31 letter to Chairman Martin from Republican Leader John Boehner.

Upon reflection, I think what is most disturbing about what Chairman Martin apparently is about to do is the way it is the anti-thesis of conservative, not “conservative” in a partisan political sense, but in the Burkean sense of little “c” conservatism. It is true that President Bush and many of his appointees could never fairly be accused of being Burkean conservatives, but that is too bad. And it is especially too bad when it comes to taking a step that likely will be used as a precedent for much greater regulation of the broadband Internet than even Chairman Martin likely envisions, or with which he would claim to be comfortable.

Now Chairman Martin’s allies in this matter, Move.on, Free Press, Public Knowledge, and Google, are anything but Burkean conservatives. They will freely and proudly admit that they want to radically alter the FCC’s existing general posture of creating a minimal regulatory environment for the Internet. (It must be pointed out that, under Chairman Martin’s rein, this general deregulatory posture, announced in 2002 under his predecessor, increasingly has been honored in the breach.) More and more Chairman Martin has allied himself with Move.on, Free Press, and others who want much more broadband regulation.

Now, to be clear: Unlike some, I have not taken the position that the FCC definitely is without legal authority to sanction Comcast for the Internet service provider’s actions regarding BitTorrent. It may have such “ancillary” authority, but it may well not. To my mind, the agency’s authority is questionable, especially after it proclaimed it was adopting net neutrality “principles,” not “rules.” And the courts have not been at all reticent about holding – frequently – that the FCC has exceeded its regulatory authority. This being the case, the prudent course would be for the FCC not to take what amounts to a radical step towards Internet regulation in a matter that, for all practical purposes, has been resolved. As far as I can tell, BitTorrent, supposedly the offended party, is not urging the Commission to proceed to sanction Comcast, but rather working with Comcast and others in engineering forums to develop mutually-satisfactory network management techniques. We would have a different case for the FCC to consider if Comcast had not changed its disclosure practices and then proceeded to work with others in the Internet community to address network management issues that, with today's exploding P2P traffic, are of common concern to all.

So, the reason I find Chairman Martin’s proposed action the anti-thesis of conservative in the Burkean sense, is that it is simply imprudent. For an official to exercise the government’s authority just because he or she may possess the raw power, when there is no longer a sound reason or pressing consumer or other need for such exercise, is imprudent. Indeed, in this instance, not only is there not a present need to exercise such power in light of what has transpired since last November’s BitTorrent affair, its exercise in the service of delving into what are almost universally recognized to be difficult technical network management issues, is likely affirmatively to cause harm. Taking regulatory action, likely to cause future harm in the absence of present need, on the basis on uncertain legal authority, is unconservative.