Balkinization: How I Lost the Big One, Bigtime

How I Lost the Big One, Bigtime

Marvin Ammori

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, David Vladeck, 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. We can also expect this decision to galvanize citizens across the country, much like the Citizens United decision.

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 be awful 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.

Posted 11:51 AM by Marvin Ammori [link]

Comments:

Jack Balkin noted:

What does this mean for the fight over network neutrality?

Less than you might expect.

So, do you two disagree?

As to Mr. Lessig ... I found his second guessing naive. I doubt the Supreme Court would have decided differently than the 7-2 ruling handed down if he just would have used another argument, somehow. I say this as someone who supported the dissents.

So, I'm glad you are not second guessing yourself.

# posted by

Joe : 12:55 PM

". . . 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."

This is what happens when your Constitution and highest courts construe or draw a judicially created false equivalency between "legal property fictions" and "natural persons", when property "rights" are valued above almost all others and where "profit" is the highest human/citizen "end" to be pursued above all others.

Nobody in positions of political or economic influence or authority give a rat's ass if the internet is slower or more costly or harms democracy. They care if it is "as profitable as it can be". For somebody. Usually somebody who spends lots of money lobbying to keep it that way for their narrow benefit. Especially when that lobbying is on behalf of some legal entity (or association of them) that has a near monopoly on some product or service.

Our national motto should be changed to "So Long As I Get Mine!".

Color me shocked. We want a solution to all these related problems there needs to be a simple Constitutional Amendment that says "legal property fictions of whichever type" are not entitled to or afforded the full panopoly of equal rights and privileges as natural persons.

And then have a democratic debate about the scope and nature of the rights and privileges entities engaged in particular (non)economic endeavors should have.

Short of that prepare for more of the same.

# posted by

rrheard aka Rabble Rousing Misanthrope : 11:11 PM

Given the way the government often functions, a likely revised outcome from FCC's perspective in the near future, given the imperative of deploying the current vigorous broadband nationwide initiative, might be simply disbursing money to carriers, and adding a dollop of the national security state's aims by government's underwriting deep packet inspection (DPI) to the strongest companies. I felt sorry for the deregged babyBells who faced hordes of small competitors at the dawn of the internet clamoring for unbundled network elements (UNE); the Bush FCC cushioned the industry principals from that untoward eventuality. Yet, there is some merit, I believe, to the concern in the industry regarding bandwidth thirsty applications.

A little money, a narrowed field of competitors, and a little DPI; there is a bureaucratic solution that can develop, if congress eschews relooking at the mess they have overseen since the mid-80s with telco dereg, then mid-90s with the beginnings of the internet.

Fortunately, FCC has ample tools in its armarium to address reshaping the topology and velocity of our online internetworks. Congress will have to remain sidelined contemplating the senate's chosen parliamentarist dysfunctionality threshold supermajority rule, while the current administration waxes creative, to actually provide enhancements to service.

There was a charming conversation with RHundt here a few years ago on this very topic. The only differences in the milieu since that interchange have been the advance of the surveillance atmosphere and the suspended animation in the senate which continues searching for its sixty votes, though at its foundation a majority ruled chamber.

I appreciate the effort of the author and associates.

# posted by

JohnLopresti : 12:34 PM

What if the FCC reverses the decision underlying the BrandX case and declares internet a telecommunications service? Then the telecoms would be common carriers with an anti-discrimination requirement.

# posted by

Anonymous : 12:49 PM

Oops, sorry, hadn't read Jack's previous column, it's point 3

# posted by

Anonymous : 12:51 PM

Of course, Congress could just pass a law to actually GIVE the FCC statutory authority in this area, and as I understand it, that would neatly overturn the ruling. But that's a radical idea, a regulatory agency claiming authority based on an explicit law, and asking Congress to officially extend it's jurisdiction, rather than just claiming the extension.

IOW, maybe you should have spent your time arguing before Congress, not the courts?

My own opinion, of course, is that I'd much rather see something done about local governments handing telecommunications companies exclusive franchises, than net neutrality. Better to get some real competition, than try to make monopolists act as though they were in a competitive market.

# posted by

Brett : 7:23 AM

I'm with Brett on this one. In my opinion, something as important as net neutrality should be protected in formal legislation, not in the easily changed orders of executive agencies.

# posted by

PMS_CC : 1:54 PM