Now that the Federal Communication Commission’s (FCC) so-called Open Internet Order (OIO) has finally been released, we can begin to assess where we go from here. Besides the numerous reasons why the FCC’s decision is bad policy, it is also unconstitutional and a violation of the Telecommunications Act.
The Fifth Amendment
The OIO is a violation of the takings clause of the Fifth Amendment. The amendment concludes with the statement “nor shall private property be taken for public use without just compensation.” The legal history of this clause is long and complex, and the whole argument as it applies in this case is spelled out at length by Daniel Lyons. Here I will only summarize some basic principles that can be applied to the FCC’s Order. First, there is the rule, established by Loretto v. Teleprompter Manhattan CATV Corp, that a permanent occupation or regular use of private property by the government or the public is a per se taking requiring compensation. This is exactly the scenario that is created by the OIO. Internet service providers (ISPs) are now required to allow edge providers (e.g. Netflix, Amazon, Google) to use their networks without charge or face penalties for blocking and paid prioritization which the Order bans. The FCC and its allies have responded to this argument by claiming that use of a network is not physical occupation, and therefore not a per se taking, but this assertion is incorrect. The sending and receiving of information over networks takes place in physical space; the moving of content across a network with flows of electrons is not non-physical simply because the occupation is too small to see. The moving of information along a privately owned fiber or wire is not unlike the movement of people across privately owned land which the Supreme Court has already ruled falls under the Loretto rule. Furthermore, even if it does not require permanent occupation, the Order certainly requires ISPs to permit regular use of their networks, which still constitutes taking under Loretto.
The FCC acknowledges this difficulty in its Order (page 277 of the Order), but brushes them aside on the grounds that ISPs offer their services generally to the public. Since they voluntarily open their networks to occupation by customers, the Order argues, they cannot assert that regulation which prevents them from excluding certain customers is a per se takings. The Commission is correct in this argument; there is extensive legal precedent showing that regulators do have the power to enforce non-exclusion rules on firms which voluntarily offer their service to the public. The problem with the Commission’s argument is that the issue at play in the net neutrality debate, and the issue addressed by the Order, is not the relationship between last-mile ISPs and their customers but the relationship between last-mile ISPs and edge providers’ content.
While it is true that exclusion of end users is not a per se right, exclusion of edge providers is. This important distinction can be illustrated with a non-Internet example: Walmart cannot engage in discrimination (for irrelevant reasons) against its customers; it has to let everyone shop there. Walmart does not, however, have to let everyone sell their products in its stores and it is allowed to charge a premium for things like prime shelf space. Therefore, it would be a per se taking for the government mandate that Walmart carry certain goods or all goods. In the same way, since the Open Internet Order requires ISPs to allow all edge providers to regularly use their networks, it is also a per se taking which requires just compensation. Since the OIO does not provide for such compensation, it is unconstitutional.
Mobile Broadband and Section 332
The FCC takes a new step in its Order by applying its common carrier reclassification to mobile broadband providers. Section 332 of the Telecommunications Act, however, prohibits private mobile radio services (PMRS), such as mobile broadband, from being regulated as common carriers. Indeed the D.C. Circuit in Verizon v. FCC, the case which struck down the FCC’s earlier attempt at net neutrality regulations, said “the treatment of mobile broadband providers as common carriers would violate Section 332.”
Now the FCC is trying to get around that ruling (and its own previous rulings to the same effect) by arguing (page 15) that mobile broadband is the functional equivalent of a commercial mobile radio service (CMRS) which can be treated as a common carrier under section 332. The Commission’s argument makes a massive stretch by holding that because some Internet services, like VoIP, result in information being sent over the telephone network, they are therefore interconnected with that network which would allow them to be treated as CMRS. The illogical gymnastics of the FCC’s argument do nothing to change the clear fact that mobile broadband is PMRS; the provision of certain services that eventually link to the phone network does not mean that all mobile broadband is interconnected with that network. The stubbornness of reality means that the FCC’s classification of mobile broadband as a common carrier service is illegal.
Termination and Section 203
A stated goal of the Open Internet Order is to prevent paid prioritization of content from certain edge providers. The Commission wants to ban so-called “fast lanes” that would disadvantage smaller providers and entrepreneurs or allow ISPs to extort fees from edge providers in order to have their content delivered. The law, as Ford and Spiwak of the Phoenix Center demonstrate, makes the way the FCC goes about accomplishing this goal legally impossible. Section 203 of the Telecommunications Act requires that telecommunications firms submit positive tariffs to the FCC. This “tariff” is basically a list of how much the firm charges for each service it provides so that the FCC can judge whether the rates are too low (confiscatory) or too high (excessive). Since ISPs are now classified as telecommunications firms, they will be required to do this for their services.
The service provided by ISPs is obviously delivering to end users the content they request. But the Verizon decision indicated that ISPs also provide a service to edge providers known as termination. Termination is the service by which ISPs deliver the content of edge providers to that edge providers’ customers. For example, Comcast provides termination service to Amazon when it delivers Amazon content to Amazon’s customers who subscribe to Comcast Internet. Termination is basically the same thing as consumers’ Internet service but viewed from the edge providers’ perspective; delivery of YouTube videos to your house is as much a service to YouTube as it is to you.
Currently this system works fine because ISPs normally do not charge edge providers extortionate, or even any, fee for termination; they happily collect their revenue from consumers and go about their business. But with Title II reclassification, termination is now a telecommunications service, and, under section 203, ISPs must charge for it. Furthermore, the FCC cannot stop the creation of slow and fast lanes as “unreasonable discrimination” under section 202 because prioritized termination is a different service than regular termination. Discrimination cannot exist between unlike services. Ironically, the very scenario the FCC seeks to avoid is all but mandated by the reclassification.
The FCC seeks to escape this situation by forbearing from section 203 in the context of termination (page 241), but that is not legal. The Telecommunications Act allows for the Commission to forbear from certain provisions of the act or regulations if they are not necessary in order to serve the public interest. The FCC’s own argument, however, is that ISPs are “gatekeepers” for content going from edge providers to the ISPs’ customers, and they must be regulated to ensure the public interest. The D.C. Circuit agreed saying in Verizon that ISPs were “terminating monopolies.” As Ford and Spiwak observe, in all previous forbearance cases competition was cited as justification for why forbearance was consistent with the public interest. Since the FCC and the courts have already said that ISPs have a monopoly on termination, they have no legal basis for forbearing from section 203 for termination service. The FCC is aware of this problem but ignores it merely saying that they “reject the argument” (page 197).
Despite widespread enthusiasm about the FCC’s decision, the Open Internet Order sets aside both sound policymaking and the rule of law. The Order should not survive in court.
The article was originally published in two parts on PolicyInterns.com: Part 1 Part 2