Media Wonk

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FCC: Right for the wrong reasons - August 3, 2008

Media Wonk is not a lawyer, and certainly no expert in the administrative law governing the work of federal agencies. But he is from New York and he knows a three-card monte game when he sees one. And he saw one on Friday when the FCC voted 3-2 to sanction Comcast over its purported network management practices.

Officially, the FCC's action was an "adjudication" of complaints brought against Comcast by Free Press, Vuze and others. But its authority to adjudicate in this case was largely in the eye of the beholder. The Commission, and in particular chairman Kevin Martin, claimed it had all the authority it needed under the network neutrality principles it announced in 2005. Lawyers will no doubt be arguing over the exact legal status of those principles for some time. But on a basic intellectual level, the misdirection was clear.

If the Commission were really confident about its authority to "oversee federal Internet policy," as it claimed in its press release, it would have initiated on a proper rulemaking in response to the complaints against Comcast. But Martin clearly wasn't interested in a formal process in which the Commission's ability to act would be constrained by its actual statutory authority.

The tell was Martin's opposition to efforts by Congress to give the FCC clear authority to "oversee federal Internet policy." Supporting those measures would have implied it didn't already have that authority, undermining its efforts to sanction Comcast. Instead, it reached for its more loosely defined authority to "adjudicate complaints" against companies like Comcast.

That was the regulatory equivalent of a palmed card, and it's no way to make public policy. Even if you agree with the outcome of the Comcast case, there's no escaping its fundamental intellectual dishonesty, and in the long run that's not going to serve anyone's interests, including the public.

What Comcast apparently did in slowing down some BitTorrent traffic--and I say "apparently" because the FCC made no effort to verify independently the claims in the complaints--raised a legitimate red flag. The small number of cable phone companies that control most Americans' broadband Internet access are indeed in a position to exercise inordinate influence over how people use the Internet. What limits, if any, should be put on how they can wield that influence is an important public policy question, deserving serious consideration through an open and transparent process.

That's not what we got from the FCC's handling of the Comcast case.
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