Comcast Decision Was Narrow, Didn’t Limit FCC Authority over Internet, Schlick says
A disconnect remains between what the U.S. Court of Appeals for the District of Columbia Circuit said in Comcast v. FCC and what the “headlines” said the court had decided, commission General Counsel Austin Schlick said at a Federalist Society conference. He also questioned whether Congress will be able to approve “technical” rules for the Internet or whether they would better be left to the FCC. Schlick’s remarks Saturday could be significant, since commission Chairman Julius Genachowski is reportedly weighing whether to push for net neutrality rules without reclassification of broadband as a Title II service (CD Nov 22 p1).
"The actual decision says nothing at all about the FCC’s powers with respect to Internet access or with respect to Comcast or any other Internet services, and it’s really remarkable in the purity of its legal analysis and the purity of its administrative law focus,” Schlick said. “The important aspect of the case, I think, is the D.C. Circuit’s narrow construction of, based on other cases, statutorily mandated responsibilities.” The decision “doesn’t tell you about how to interpret the Communications Act and communications law to determine what those statutorily limited responsibilities are.”
What Congress understood when it approved the Communications Act in 1934, and the D.C. Circuit “failed to appreciate in the Comcast case,” is that “there is simply no way that Congress can make the kind of technical, time-sensitive decisions that the commission and other regulatory agencies … are called upon to make,” Schlick said. “The fact is that Congress simply can’t move fast enough.” The Comcast decision could still be overturned by the Supreme Court, he noted. “I think it will be overturned by Congress, because for very practical reasons it is not a workable structure for the communications industry.”
The appeals judges in the Comcast case appeared “uncomfortable” with five “unelected commissioners” making decisions important to Americans in their daily lives, Schlick said. “That’s a certainly a reasonable concern, but it is the regime that Congress put in place through the Communications Act,” he said. Congress clearly gave the FCC broad authority in the act, Schlick said. “Congress gave us a very broad mandate … based on clearly articulated statutory purposes as well as narrow mandates, things that the commission shall do by particular rule,” as well as “things the commission shall [rely] on its expertise to do,” he said.
Judicial decisions that federal agencies “have gone outside the boundaries set by Congress” and should be reversed are based “almost invariably” on one of two situations, Schlick said. “The first is that the agency [got involved] in subject matter that Congress did not authorize it to regulate,” he said. “So if the FCC were to regulate food safety we would be beyond the boundaries established by Congress.” But “that’s certainly not the case” in the Comcast decision, he said. “We were certainly on the right playing field.”
The second category is when agencies “disregard specific prohibitions or limitations” of an Act, Schlick said. “Here there isn’t a specific prohibition or limitation on the Internet and the commission’s regulation of Internet access, no line that the commission crossed,” he said. “The Communications Act gives us very broad jurisdiction.”
Judge Diarmuid O'Scannlain of the U.S. Court of Appeals for the 9th Circuit in San Francisco, who also spoke Saturday, said the importance of the Comcast decision remains to be seen. “It is still unclear if the court’s ruling portends a change in administrative law or if its effects will be limited to the FCC,” O'Scannlain said. “It is also unclear where the ruling leaves the FCC in terms of its ability to implement net neutrality regulations."
Ronald Cass, a former FTC commissioner and dean of Boston University School of Law, said regulators do not in general need much encouragement to impose rules like those covering net neutrality. “The history of government is not a history of officials who are diffident, shy, afraid to exercise their authority, and we really need to figure out ways of encouraging them to do that,” Cass said. “You have plenty of people out there who have competitors and very few of them want you to just leave their competitors alone. They want you to do something to hold back their competitors.” The use of “ancillary jurisdiction” by the FCC or another agency “is a way of saying, ‘Be creative, go out and find a hook for this, don’t go through the inconvenience of having Congress, which is busy with other stuff, go out and write laws.'”