Important issues of digital policy face the Federal Communications Commission in the coming months following last week’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 ISPs.
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 it must always keep its eyes on the courthouse steps, as well, since all of its final orders are subject to review by a federal court.
A court review, particularly in the U.S. Court of Appeals for the D.C. Circuit, is far from a rubber stamp. As two prior proceedings have demonstrated, the D.C. Circuit believes the FCC’s asserted legal authority for imposing a full set of broadband network nondiscrimination 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.
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 telecom 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.
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” — 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.
If we can “Think Globally, Act Locally,” the commission also should be able to “Think Analog, Act Digital” as it charts our broadband future.
Stuart N. Brotman is a nonresident senior fellow in the Center for Technology Innovation within the Governance Studies program at the Brookings Institution.
