The Sheriff of “Not-the-Internet”: reflections on Comcast Corp. vs. FCC

Abstract

In Comcast Corporation v. Federal Communications Commission, the United States Court of Appeals for the District of Columbia Circuit reaffirmed its understanding that the Commission’s authority to regulate the provision of broadband Internet services can only be justified with reference to the exercise of the Commission’s statutorily mandated responsibilities. The D.C. Circuit decided that, in restraining Comcast’s practices of arbitrarily interfering with the transmission of BitTorrent files by its users, the Commission relied on statements of policy that, in themselves, do not grant the Commission the authority to regulate those practices. An avenue, however, was arguably opened by the D.C. Circuit for the Commission to explore the impacts of services it does not have direct authority to regulate (e.g. voice-over-IP services and Internet video services) upon those it does have the authority to (e.g. common carrier services and broadcasting services). In a recent move, however, the Commission undertook to ignore such impacts. Instead, it chose to rely on the fiction that the transmission component of broadband Internet services is something separate from the Internet – “not the Internet” – and thus can be regulated based on provisions that grant the Commission the authority to regulate common carrier services, with some caveats. This article argues that such a move by the Commission – which the Commission calls “a third way” – fundamentally ignores the nature of both regulation and the Internet.