Monday, March 02, 2015

Republicans in Congress are backing up over the FCC into a wall

Last Thursday, the FCC voted to do 2 things:

1. They preempted state laws in two states that prevented community broadband services from expanding into unserved areas.
2. They reclassified ISPs as common carriers to allow enforcement of strong net neutrality rules.

Both of these actions will serve to undermine the dominance of the incumbent carriers we all know and love: Comcast, Verizon, Time-Warner, ATT and Centurylink.

Conservatives in Congress, furious at this action, are working on bills that would undo the FCC's work if signed into law. But that same faction lacks the supermajority needed to override a veto. This is all for show, anyway. You know, playing to their base in the peanut gallery.

But this stream of events suggests something else. It seems interesting that Republicans in Congress would even bother since they must have read the news that conservatives around the country support municipal broadband. A great example is Colorado where 8 communities voted for local control to build their own networks, one by a majority of 92%. Community Broadband Networks has done a survey to find that the majority of community broadband networks are in conservative jurisdictions. There is an obvious disconnect between Congress and their constituents on this issue. Community Broadband Networks has observed that the disconnect is one where Congress stands on ideology whereas the local governments see the practical advantages of municipal networks: jobs and relief from incumbent service providers who refuse to invest in their communities.

For example, a Republican leader in the state house of Tennessee is strongly in favor of municipal broadband. Republican State Senate Leader, Janice Bowling published an op-ed piece supporting the FCC's pending action to give rural areas the legal space they need to build their own networks. On the other hand, Representative Marsha Blackburn (R-TN) says that the recent votes are a step towards a total government takeover of the internet. Blackburn also seems to think that the FCC is without authority to re-classify ISPs as public utilities.

For all their bluster in Congress, it is worth noting that the law and judicial precedent is on the side of the FCC. In the BrandX case, Justice Scalia made a salient point in his minority opinion of the ruling. Scalia noticed that cable companies were offering internet services like email and web page hosting in order to be classified as information services, even when they owned the physical infrastructure: cable. He said that just because you offer additional information services on top of the cable you own doesn't make you an information service, and said that the FCC is without authority to classify cable ISPs as information services. In other words, if you own the pipes, you're a common carrier.

The FCC's vote to reclassify ISPs as common carriers will almost certainly meet a legal challenge in the courts, but I doubt any of them will be successful. Once it becomes clear that the nexus of those cases turns on who owns the pipes, I believe that the cases will be roundly dismissed by the courts.

I've considered the possibility that Republicans may try to pass a law to change the definition of "common carrier", but the term has a long history in common law and will be very difficult if not impossible to change. With so much history and precedent at stake, the courts will be reluctant to disturb a body of law that millions of people rely upon. Conversely, if the FCC had a Republican majority and reversed the decision last week, that would not hold up in court if challenged. Scalia says that the FCC simply has no discretion on classification based on his own reading of the law.

I'm glad to see the FCC finally sticking up for regular Americans and holding the incumbent carriers accountable for their actions. Let's hope they get the support they need when the rubber hits the road.
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