Telecom analyst Barbara Esbin's paper, The Audacity to Hope Regulatory Restraint Will Prevail, discusses an interesting argument that the Federal Communications Commission is making in support of its 2008 decision that Comcast's covert blocking of peer-to-peer traffic violated the Communications Act. The FCC, in a brief filed Sept. 21 in the D.C. Circuit, is arguing that it has implied authority (known as "ancillary jurisdiction" in telecom-speak) to regulate Internet communications via Section 230(b) of the Communications Decency Act, a subset of the federal government's telecom regulatory structure.
CDA Section 230 is a non-obvious place for find FCC authority to take action in support of net neutrality, and Esbin doesn't think much of the FCC's argument. I found her article and the FCC's brief, read together, to be illuminating reading about the legal issues surrounding net neutrality policy, mercifully free from the hysterical rhetoric that dominates most discussions of this issue.
CDA Section 230(b) is a policy statement rarely been discussed in the many judicial decisions involving the CDA, nearly all of which deal with the civil immunity it provides for interactive computer services in cases involving objectionable third-party content. Section 230(b) reads:
(b) Policy.--It is the policy of the United States--
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
The FCC, in its brief, contends that Section 230(b) expresses a congressional policy in favor of "maximizing user control over the receipt of Internet content." Building on this point, the FCC argues that its 2008 action against Comcast furthered "those express congressional policies." It will be interesting to see if this argument prevails in court.
Even if this part of Section 230 carried substantive weight, this language fairly supports arguments both in favor of and against federal regulation of Comcast's traffic management decisions. In one ruling I dug up, Vonage Holdings Corp. v. Minnesota Public Util. Comm'n, D. Minn., No. 03-5287 (MJD/JGL), 10/16/03), the court remarked that Section 230(b) expressed a policy against state regulation of the Internet.
Discussions about whether the FCC has authority, or should be given authority, to regulate in the area of net neutrality are now taking place both in Congress and within the FCC via Chairman Genachowski's recently announced rulemaking. Regardless of how the D.C. Circuit proceeding turns out, it appears there will be clarity on the FCC's net neutrality authority soon.
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