Robert Blau, BellSouth
Jeffrey Carlisle, chief of Wireline Competition Bureau of FCC
Bill Hunt, Level 3
James Lewis, MCI
Randolph May, Progress & Freedom Foundation
Gigi Sohn, Public Knowledge
James Speta, Northwestern U., Law

Since this is about ancillary jurisdiction and I don’t know what this, I’m lost. As I’m googling around, the panel is proceeding. Damn. (Some resources here). Here’s the official topic:

What are the arguments for and against FCC’s exercise of “ancillary jurisdiction” over IP-enabled services? Are there new ways of thinking about the FCC’s role (e.g., a “layers” approach) that might be useful? Can the FCC preempt state actions without itself acting?

Aha! This is from the materials posted on the conference’s site (d’oh!):

[Panel 2 addresses] whether the FCC has statutory authority to undertake the proposed regulation. Under basic principles of administrative law, the FCC, like any agency, cannot regulate without Congressional authorization. It does not have (nor does it claim to have) express authorization to regulate IP-enabled services. However, courts have long deemed the FCC to possess so-called “ancillary jurisdiction” over matters not directly within its express authority. The NPRM invokes this ancillary jurisdiction

I.e., it means the FCC can regulate stuff they don’t have the right to regulate in order to enforce regulations on stuff they are allowed to regulate…in this case, IP-enabled services.

[It was just announced that the panelists want to clear what’s being written about them. Apparently, this does not apply to bloggers. I should note, however, that I make no claim to accuracy or fairness. I’m doing my best, but I am an unreliable narrator, especially when I don’t understand what anyone is saying.]

Sohn describes the Broadcast Flag: The FCC says that all digital devices have to be compliant to the “flag.” Her group‘s position is that there’s nothing in their ancillary jurisdiction that gives the FCC to compel electronics manufacturers to do this. You have to tie it to a Congresssional mandate, but the FCC didn’t even bother to do that. Not only has the FCC never mandated an architectural fix without a Congressional mandate, but the FCC is prohibited from doing this. “I think the FCC has really over-stepped its bounds…This is mainly the motion picture industry banging away on the FCC until it did something for them.”

Speta: There are good reasons for the FCC to have jurisdiction over all these things. Section 230 would be very important. [?] He refers to his paper which says (from the abstract):

the FCC likely does not have jurisdiction to address most Internet regulatory issues, because whatever expansive readings such ancillary jurisdiction has received in the past are no longer tenable. The paper proposes, instead, a new, limited statutory interconnection rule, which the FCC could enforce in limited ways in Internet markets.

Lewis says that you ought to look at physical, layer, app and content layers. As you go up the stack, the need for regulation diminishes.

The panel discusses the “layers” model, which comes from an MCI paper by Richard Whitt, “A Horizontal Leap Forward: Formulating a New Public Policy Framework Based on the Network Layers Model,” (March 2004).) From the abstract:

Some argue that new IP services should be “shoe-horned” into the existing requirements of the legacy system, despite the poor fit. Others believe that new classifications and definitions can be created within the confines of legacy regulations. In MCI’s view, however, the optimal solution is to turn the conundrum around on itself, and begin to adapt our legal thinking and institutions to the reality of how the Internet fundamentally is changing the very nature of the business and social world.

In this paper, MCI will explain that trying to impose the current outmoded legal system onto the Internet and all its IP progeny is a flawed, damaging, and ultimately doomed approach. Instead, policymakers should adopt a new public policy framework that regulates along horizontal network layers, rather than legacy vertical silos.

From later in the paper:

To avoid the risk of further serious damage, policymakers must move away from the increasingly outmoded vertical “silos” that artificially separate communications-related services, networks, and industries from each other. Informed by the way that engineers create layered protocol models, and inspired by the analytical work of noted academics and technology experts, policymakers should adopt a comprehensive legal and regulatory framework founded on the Internet’s horizontal network layers. We must build our laws around the Net, rather than the other way around.

Sohn likes the layers model because it limits what the government can regulate. The alternative seems to be to call everything “communication” and regulate the whole shootin’ match.

Carlisle: The statute isn’t set up to be very nuanced: We have telecom and we information services. The layered approach looks great, but how does it fit into the statute?

Lewis: The layers model translates well.

Speta: Layers help analyze problems, but I worry about writing it into the act. As for moving it into the executive branch: I don’t like it.

Blau: When the next legislative debate gets going, probably next year, it will be difficult to justify today’s heavy-handed approach to regulation…

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