One of the many intriguing elements of this month’s DC Circuit argument [pdf] in Comcast v. FCC was the sheer eagerness of the judges to talk over each other about the FCC’s jurisdiction. This is exciting stuff, I’ve always thought, and the three panelists were raring to go. Sitting through the Comcast portion of the argument must have been torture for the FCC side.
The Comcast attorney wanted to point the panel in the direction of the administrative law issue here: was there sufficient certainty in the rules to give Comcast fair notice? Was the Commission’s 2005 Internet Policy Statement enforceable? Authority isn’t the central question for Comcast – the company would rather keep that question open for the future.
Judge Tatel didn’t want to focus on notice or process:
Q. “[I]sn’t it possible that the Commission’s order could stand on the basis of its ancillary jurisdiction if it could be linked to come statutory authority the Commission has?”
Judge Tatel persisted in his questioning on this point, asking Comcast’s lawyer several times to respond on the ancillary jurisdiction issue and citing the relevant cases.
The other members of the panel chimed in on jurisdiction. Judge Sentelle asked Comcast which question should necessarily come first for the Court’s decision – if the process was wrong, the court doesn’t have to reach the jurisdictional question; if there was no jurisdiction, the court doesn’t have to reach process. Judge Randolph suggested that the whole idea of ancillary jurisdiction was old-fashioned.
Finally, the Comcast lawyer had to leave her process points and agree. She agreed that if Congress had meant to delegate authority to the FCC in this area it would have said so – “But to suggest that by stitching together policy provisions, and on, and on, that Congress spoke to this. . ”
Here’s what’s going on: During the Bush era, the FCC decided that it wanted to deregulate high-speed Internet access, and remove unbundling, interconnection, and nondiscrimination obligations imposed on providers by Title II of the Communications Act. But it didn’t want to get rid of all possible rules for providers, and so it declared that it could re-regulate them under Title I ancillary authority – asserting that the Commission had broad authority to issue whatever rules it needed to under a general housekeeping section of that Title. The Commission also reserved the authority to re-regulate them under Title II later.
These regulatory gymnastics seemed ridiculous to Justice Scalia in BrandX:
“[W]hat the Commission hath given [deregulation], the Commission may well take away – unless it doesn’t.”
The sheer political chutzpah of (a) removing longstanding obligations for general-purpose communications transport companies in order to (b) serve the interests of high-speed Internet access providers – while (c) retaining the power to impose some obligations later under an inapplicable portion of the statute – has come back to haunt everyone concerned. That’s the “stitching together” to which Comcast is referring. It’s a Title I house of cards.
The FCC needs to consider going back to the basics of Title II regulation – interconnection, nondiscrimination, unbundling – while signaling that it will “forbear” with respect to ratemaking. If it doesn’t, it’s not clear where its power to say anything with respect to high-speed Internet access comes from. The DC Circuit is apparently not convinced that “ancillary jurisdiction” is meaningful.
This is a tumultuous moment in telecommunications policy. Public Knowledge has filed a petition asking the FCC to reclassify high-speed Internet access under Title II. Everyone’s talking about reclassification. Just ask Justice Scalia – it can be done.