How I Lost the Big One, Bigtime

On Tuesday, the D.C. Circuit ruled on an important Internet law case I argued for the FCC’s supporting Intervenors, where the court rejected legal theories I helped craft on complaint I filed when I was, oddly, the only on-staff lawyer of the lead complainant, the media reform/open Internet group called Free Press.  (I had deferred my current law professorship for that position.)  Jack wrote about it yesterday, and I wanted to post a few thoughts about the decision.

I’ll begin with how the decision affects you: it’s really bad news for you and other Americans.  I’m sorry to be the one to tell you, but I’m sure you’ve heard (from multiple news sources). The court decision is a stunning, sweeping defeat for the FCC and for its ability to protect consumers, foster competition and innovation, and preserve the Internet’s role as an engine of free speech and democratic discourse. It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us.   (The subject of the Free Press-Comcast case, which this decision vacated, was precisely this factual scenario.)  Tuesday’s decision  also means the FCC cannot implement many aspects of its recently-issued National Broadband Plan, and the US will continue to fall behind the rest of the world with far slower, more expensive, and less innovative broadband service, strangling our economy and harming our democracy.

Really. At least, that’s the effect if the Obama FCC continues to follow the legal framework adopted under the Bush administration–a framework that requires the FCC to play football with a tennis racket, a framework for authority that the DC Circuit just beat to death, shot, and then drowned.

From my point of view, I was reminded of my friend Larry Lessig’s classic article, “How I Lost the Big One,” where he said he wished he could go back in time and argue differently an important test case he lost in 2003 (Eldred v. Ashcroft).  I’ve thought about the case, for months now since the argument, and I don’t feel that way.  If we argued it poorly in Tuesday’s loss, we at least argued it 9 different ways (which I discuss below).  I doubt our tenth best argument would have worked any better. Plus, I benefited from the advice of so many lawyers and law professors during the FCC proceeding against Comcast, and on appeal (where the FCC’s excellent lawyers, not I, carried the oar), that I don’t think we could have had better lawyers considering the issues.  (Thanks go to friends like Jack Balkin, Larry, Tim Wu, Barbara van Schewick, Yochai Benkler, those at Media Access Project and Public Knowledge, as well as, primarily, the amazing team at Free Press, those at the FCC, and many many others, for making sure some young law professor wouldn’t go astray.)

For this post, I want to look on the bright side.

First, we succeeded in many ways, factually.  Politically, we brought a case that helped educate the public and the FCC about blocking and discriminating practices that Comcast claimed were becoming an industry standard across the entire Internet, at least in the US; hundreds of thousands of people got involved to stand up for an open, free Internet; and organizations ranging from the Christian Coalition to Moveon to people who love Barbershop Quartets stood together to ask their government to preserve the democratic promise of the Internet.  And, because of public scrutiny and the FCC investigation, Comcast changed its practices.  Those are good things.

Second (and I’ll spend more time on this), the case served its purpose perfectly–it was a “test” case to test several important questions and get a definitive answer.

So, here’s some background.  I’m sorry we need background, but your speech rights are generally threatened by several years of complex-sounding legal decisions and political maneuvers (just think about the cases leading up to Citizens United).  So background helps.

The Bush administration, from 2001 to 2005, worked doggedly to “deregulate” broadband Internet access.  The effect was, among other things, you would not be able to choose your own ISP on DSL or cable modem the same way you could on dial-up (choosing among, say, Earthlink and NetZero and AOL, not just your phone company’s ISP).

Turns out, substantively, that decision has resulted in our nation having slower, more expensive broadband Internet connections, as independent ISPs invest in new technologies and drive competition.  That FCC decision also put the FCC on (what the DC Circuit believes to be) flimsy legal grounds for protecting consumers, even when the second largest ISP (Comcast) blocks some of the most popular, pervasive technologies used by millions of Americans.

Indeed, shortly after these deregulatory decisions, the biggest carriers, like AT&T and Verizon, announced that they would transform the Internet into a pay-for-play medium they controlled, rather than an open, general purpose technology we all know and love.  That would totally suck for our country.  Millions noticed, and this sparked a citizen movement organized by Free Press through a coalition called Save the Internet.

In response, the carriers backtracked, in their public rhetoric, and argued a few things.

(1) We’d never block or interfere with the open Internet, even though we have announced the intention to do just that, and are spending hundreds of millions of dollars lobbying against “net neutrality” rules forbidding us from doing that.  And (2) if we ever did interfere with the open Internet, don’t worry, the FCC will punish us.  And (3) the FCC will have the jurisdiction to do.

So we tested those three point.

1.  Would the carriers interfere with Internet content and applications? Based on the FCC investigation of Comcast’s actions, the answer was a resounding yes.  Carriers would not only interfere, and with very popular technologies, they would lie about it, over and over, and then when caught, lie some more.  And afterward, they’d keep lying, and keep blocking.  If the FCC learned anything during that investigation, it is that Comcast was not a good faith actor.  Recently, Windstream engaged in some of its own interference, hijacking search queries.

2. Would the FCC punish bad actors? We thought this unlikely–the FCC is a notoriously captured agency that generally follows the orders of the companies it is supposed to regulate.  The carriers seemed to have even more power under the Bush FCC. But in the FCC’s entire history, it has adopted just a handful of pro-consumer decisions in the face of carrier-pressure.  But, it turned out, to our surprise, the answer was yes, the FCC would act, thanks largely to a citizen outcry and engagement.  The answer was yes, even when the Chairman was a deregulatory Republican named Kevin Martin facing unbelievable political pressure brought to bear by some of the nation’s most powerful and ruthless companies, with the backing of many Republican leaders.

3. Finally, does the FCC have the authority to protect consumers?

The worst-case scenario for us was that we would get an unclear answer on jurisdiction.  Free Press devoted considerable resources to this case–their only lawyer spent almost every moment of his day working on it, alongside three other senior Free Press policy staff, who had similarly overworked schedules in taking on almost every law firm and lobbying shop in town–and many others pitched in from other organizations and from academia.  The last thing we wanted was for the DC Circuit to avoid the key question of the test case on appeal–does the FCC have jurisdiction to protect consumers, preserve an open Internet, encourage deployment of new technologies.

We were given the guidance we wanted, although the answer we didn’t.

The Obama FCC had thought, until yesterday, that under the Bush-FCC’s framework, the FCC maintained something lawyers call “Title I,” or “ancillary jurisdiction” over Internet access providers like Comcast, AT&T, Cox, Verizon, and Time Warner Cable.  On first read, it looks to me like the court unanimously removed any ambiguity–the short answer is “no.”  The long answer is “not at all.” Longer still: “Not in a boat, not with a goat, not in the rain, not on a train.”  There seems to be no wiggle room in the court’s decision, on first read.

So we lost the big one, and lost it bigtime.  Any “narrower” loss would have provided little guidance and been even worse for the public.

This clarity derives partly from our case before the FCC, where we urged the FCC to adopt every single possible basis of jurisdiction under Title I, so that a reviewing court could either reject them all or sustain one.  (These are the 9 or so arguments we raised.)  Our strategy was that there’d be no point in wondering, like one of my heroes Larry Lessig, “Would another argument have worked?”  No point in having to go back to the court five years later.  We set the groundwork below.  And then, on appeal,when the judges ominously asked the FCC how the FCC wanted to lose (on some other grounds or on “jurisdiction,” which included 9 legs of arguments), the FCC asked for “guidance”, and I similarly then pleaded for a jurisdictional decision setting the question to rest, after five years of debate, and two years after the complaint.

It’s like a relationship–if you want to break up, do it now, don’t let us wonder as you string us along.

So: test case resolved.

1. The carriers will actually interfere with the Internet, though they will lie and say they’d never do it, and then lie and say they haven’t done it.

2. The FCC will act, but only if three Commissioners are heroic enough to withstand an overwhelming political assault.

3. The Bush-era FCC decisions gave away FCC authority to protect the American public for the most important communications medium the world has ever known.  Unless the FCC reverses those decisions (or there is another reversal), the Internet will become the carriers’ controlled entertainment machine while other nations surpass us with open, high speed, affordable broadband infrastructures supporting jobs and innovation.  In short, unless this FCC re-evaluates its existing framework, the Bush administration may have made the FCC  irrelevant, and the nation with it.

3 thoughts on “How I Lost the Big One, Bigtime

  1. […] on the net neutrality case against Comcast when Comcast blocked peer-to-peer technologies, and for arguing the appeal on behalf of groups supporting the FCC, working with many in the DC and academic […]

  2. […] makes sense. After the Comcast case and congressional failure, there’s no other option. That […]

  3. […] procedures that no small company or consumer could ever bring a case. Finally, it could rest on clearly flawed jurisdictional […]

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