A lesson on Congressional intent in the Net Neutrality debate

It appears that TechCrunch has found a worthy gem in a letter from 10 members of Congress directed to the Federal Communications Commission. While the entire letter is a very informative read, I wanted to point something out in that letter to my regular readers: Congress has made a clear distinction between information creation and information transmission that should be considered in the debate over net neutrality.

I have written on this subject numerous times while chipping in my two cents in the debate over Net Neutrality. I have even filed a comment with the FCC on this exact topic.

After reading the entire letter, I must say that I feel a certain sense of vindication on the matter. From a rather difficult to read passage in a dissenting opinion written by Supreme Court judge Antonin Scalia, I saw that he made a distinction between the means of transmission of data on the internet, and the means of creation of that data.

So it is with a certain sense of satisfaction that I read the following passage in that letter, signed by 10 members of Congress who knew the intent of Congress when they wrote The Communications Act of 1996 and further amendments over the years:

So, what were those fundamental principles? When it comes to telecommunications, Congress intended the FCC to treat services that create content differently than those services that transmit that content. In the Act, we labeled services that create content as “information services,” which we defined as those that offer the capability to generate content among other things. We also created a distinct classification of services that transmit information that we called “telecommunications services.” We defined these services as ones that offer telecommunications for a fee directly to the public. We then defined “telecommunications” as the transmission of the content between two points of the users’ choosing without change. (emphasis mine)

Congress articulates the distinction much better than I did, probably because they wrote the law. This is an important distinction to make, one that people often miss, particularly in circles that have influence on public policy. But Justice Scalia nailed it more than ten years ago in his dissenting opinion in NATIONAL CABLE & TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES (04-277) 545 U.S. 967 (2005):

The Federal Communications Commission (FCC or Commission) has once again attempted to concoct "a whole new regime of regulation (or of free-market competition)" under the guise of statutory construction. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 234 (1994). Actually, in these cases, it might be more accurate to say the Commission has attempted to establish a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed. The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the authority given it by Congress.

...

If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” ante, at 18, would prevent them from answering: “No, we do not offer delivery–but if you order a pizza from us, we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually ‘offering’ you delivery, because the delivery that we provide to our end users is ‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other capabilities.’ ” Cf. Declaratory Ruling 4823, ¶39; ante, at 16, 26.1 Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice. (emphasis mine)

Notice that Justice Scalia has seen this before with the phrase, "once again", and that Scalia is absolutely clear on the intent of Congress to distinguish between content creation and content transmission.

I'd say that Ajit Pai, once legal counsel to Verizon and now chairman of the FCC, is repeating history without authorization. And now that some members of Congress have filed an official comment on "The Matter of Restoring Internet Freedom, WC Docket No. 17-108", Congress has made their intent crystal clear. These members of Congress were kind enough to create a clearly and easily cited document demonstrating their intent should Pai "succeed" in repealing net neutrality.

With this filing, I can see a flood of legal challenges to Ajit Pai's ambitions to narrowly define "stakeholders" as only the people who "invest" in broadband infrastructure. It is my hope that Mr. Pai's efforts should surely fail, so that the advice and consent of the people should be followed.