Important issues of digital policy face the FCC in the coming months following yesterday’s deadline for reply comments in a high-profile rulemaking. The proceeding, which has attained an unusual amount of national attention, concerns the Commission’s rationale and legal authority to regulate various relationships between broadband network operators and Internet Service Providers (ISPs).
As someone who has been involved in the communications policy process for several decades—both inside and outside of government—I am sensitive to the complexity and nuances that a rulemaking of this magnitude represents. As a regulatory agency, the FCC must make decisions that promote effective long-term communication policies, after reflecting on public comment of its proposals. But the Commission always must keep its eyes on the courthouse steps, as well, since all of its final orders are subject to review by a federal court.
FCC Decision Will Likely End Up in Court
Although there is typical judicial deference to the FCC’s ability to bring day-to-day expertise to bear, reviewing courts, particularly the U.S. Court of Appeals for the District of Columbia Circuit, are far from a rubber stamp. As two prior proceedings have demonstrated, the District of Columbia Circuit believes that the Commission’s asserted legal authority for imposing a full set of broadband network non-discrimination rules (often nicknamed “net neutrality”) falls outside the current law—the Communications Act of 1934. Thus, regardless of what the FCC actually decides, there is an extremely high likelihood that the matter will face a court appeal for the third time, with no real way to predict right now how it might fare in litigation.
Viewed more broadly, this proceeding is typical of every FCC rulemaking decision; the prospect of having its rules reversed or remanded by a reviewing court (including, on occasion, the U.S. Supreme Court) remains constant. The din of the debate has risen to an unprecedented level, however. This mimics the pitched battles that have created excessive gridlock in Congress, along with its resulting diminished reputation.
It’s More Complicated Than “Live Free or Die”
Mirroring the digital technology that is at the core of the debate—the Internet— some advocates have framed the issues at hand in bumper sticker fashion, easy to recite and even easier to tweet. It’s similar to the New Hampshire state motto: “Live Free or Die.” Applied in this instance, there is an erroneous notion advanced by some that if the FCC adopts a complete set of enforceable broadband nondiscrimination rules through reclassifying broadband as a regulated telecommunications service, the Internet will continue to live. But if it does not, the Internet will die.
Framing the FCC’s decision options as a binary choice reflects what I call “digital thinking” policy analysis– expecting that policy choices consist of exactly two variables, one of which must be elected to the exclusion of the other.
The FCC Should Consider Numerous Options
Regardless of the final outcome in this proceeding, the FCC should aim to counter this narrative. The best way to do this is through “analog thinking,” which is a term I use to describe a deliberate effort to think more broadly about policy options. The FCC has workable regulatory tools at hand, such as negotiated rulemaking, which have been used successfully in the past to help narrow differences among competing interests. In effect, by bringing these interests together at an earlier stage to help see what level of consensus is possible before a notice of proposed rulemaking is issued, the possibility for extending options beyond binary choices can be increased.
To its credit, in recent years, the FCC has sought analog input in pre-rulemaking workshops and forums around the country, which represents another useful strategy. In short, when the FCC acts as a legislature, which is the organizing principle for all rulemakings, it should eschew the type of adversarial process that binary adjudication proceedings require as a matter of due process.
There is a Third Way
Current FCC Chairman Tom Wheeler had an extensive track record prior to entering government in various consensus processes. His public comments since taking office also suggest that he is open to “Third Way” approaches that are not attempting to put the proverbial square peg in the round hole.
The time may now be ripe for the Chairman and his colleagues to popularize a new mantra based on an expression first adopted in the green movement during the 1970s. If we can “Think Globally, Act Locally,” the Commission also should be able to “Think Analog, Act Digital” as it charts our broadband future.