Is the FCC in charge of email?
Today, the FCC posted online a request for responses to a Petition for Rulemaking that was filed during the summer. This is no ordinary petition. It asks the Commission to require email providers (like AOL and Yahoo!) to provide transition services to email users when their accounts are closed. Because these businesses have not traditionally been regulated by the FCC - but the FCC clearly believes it has power to tell them what to do - the petition will focus attention on the FCC’s broad assertion of authority first stated in March 2004. The big question: Is the FCC in charge of the internet?
Here’s the story. A consumer in northwest Washington, D.C. (who shares her street address with the Mycological Association of Washington) suddenly lost her AOL email address several months ago. AOL closed the account one business day after the consumer called to tell AOL to stop charging her a monthly subscription fee. (It looks as if AOL decided not to charge customers who were getting highspeed access from another internet access provider - but that detail really isn’t relevant.) According to the consumer, AOL suddenly decided that because the consumer’s AOL account had initially been opened by a minor it would close the account immediately.
AOL did not provide the consumer with any transition time, and she lost access to all of her messages, saved documents, and other materials that had been associated with her screen name. This was a disaster for her, because she had been using the account for business purposes.
The consumer asks the FCC to require “ISPs” (although AOL in this instance was not acting as an internet service provider but as an email provider) to “port e-mail traffic to new e-mail addresses designated by customers” by forwarding email destined for closed accounts to new addresses.
What’s the source of the FCC’s power to regulate email providers? Good question. Telecommunications common carriers (phone companies) as well as wireless carriers are required to provide “local number portability.” You can take your phone number with you when switch carriers. But Congress has specifically said that providers of “interactive computer services,” like AOL and Yahoo!, are not to be treated as common carriers. Section 230 of the Communications Act says that “[i]t is the policy of the United States. . . 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 . .,” and there is plenty of caselaw saying that applications like email and chatrooms etc. are “interactive computer services.”
On March 10, 2004, the FCC released a Notice of Proposed Rulemaking for IP-enabled services. The FCC made clear that “the scope of this proceeding – and the term ‘IP-enabled services,’ as it is used here – includes services and applications relying on the Internet Protocol family.” Thus, the IP NPRM suggests that the Commission views its regulatory authority as extending to end-user software, network hardware, corporate and community websites and more.
In the IP NPRM, the Commission, while acknowledging that the internet had “become one of the greatest drivers of consumer choice and benefit, technical innovation, and economic development in the United States in the last ten years,” stated that “provisions designed to ensure disability access, consumer protection, emergency 911 service, law enforcement access for authorized wiretapping purposes, consumer privacy, and others [social policy concerns] – should continue to have relevance as communications migrate to IP-enabled services.” The IP NPRM suggests that traditional common carrier regulation, in which service providers file tariffs, respond to interconnection obligations, and pay access fees, may not be appropriate for IP-enabled services. But the IP NPRM indicates that “social policies” may be appropriate for some or all IP-enabled services.
An “IP-enabled service” is anything that uses the Internet Protocol. The domain name system. eBay, nytimes.com, and certainly AOL email are all IP-enabled services.
What’s a social policy? So far, the FCC has taken on E911 issues (affecting “interconnected VoIP,” but could be expanded), CALEA, and universal service obligations. Is “portability” for email a necessary social policy?
Maybe. But is there a stopping point? And has Congress actually delegated to the FCC the power to regulate the internet? I don’t think so, but the Supreme Court has deferred so far to what the FCC has taken on. The FCC is wandering around in uncharted, Title I “ancillary jurisdiction” territory, without Congressional guidance, potentially mucking around with online applications in potentially unlimited ways.
This is important. Former Chairman Powell was vocal in his support for an “unregulated” internet, at one point telling USA Today: “If you’re going to say to me that Voice over IP is something that needs regulation, then you’re going to have to explain to me why e-mail isn’t also, or streaming video or instant messaging is not also.” Some media outlets read this “unregulation” and “non-regulation” language to mean that internet applications would remain unregulated by the FCC. But “unregulation” does not mean “no regulation.” “Social policies” are something the FCC thinks is part of “unregulation.” Although it is still quite unclear what social policies the FCC will require of what categories of IP-enabled services, the FCC’s stance is consistent: the Commission strongly believes it has the authority to bring social policies to bear on the internet, and is working through a menu of such policies that it believes apply to IP-enabled services.
Is email next? Will the FCC open an “email portability” rulemaking? What stops them from requiring anything at all of any online application? Stay tuned.