Google Fears FCC’s New Internet Powers

The Web giant’s lobbyists are quietly fretting about a recent court ruling.

A sign is posted on the exterior of Google headquarters on January 30, 2014 in Mountain View, California.  
National Journal
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Brendan Sasso
Feb. 26, 2014, midnight

A re­cent court de­cision that en­dorsed a broad view of the Fed­er­al Com­mu­nic­a­tions Com­mis­sion’s au­thor­ity over the In­ter­net has Google and oth­er Web com­pan­ies nervous.

In closed-door meet­ings with reg­u­lat­ors and Cap­it­ol Hill staff, Google’s law­yers have said they’re wor­ried how the FCC may use its new­found powers, ac­cord­ing to mul­tiple people fa­mil­i­ar with the meet­ings.

The ex­tent of the FCC’s au­thor­ity over Google and oth­er Web ser­vices re­mains un­clear, and the cur­rent FCC has giv­en no in­dic­a­tion that it is in­ter­ested in push­ing ag­gress­ive new reg­u­la­tions for Web com­pan­ies. But the pos­sib­il­ity that the com­mis­sion could be­gin telling Google how to or­gan­ize its search res­ults or handle its users’ data is enough to spook the com­pany’s army of Wash­ing­ton lob­by­ists.

The FCC and Google de­clined to com­ment.

Last month, the D.C. Cir­cuit Court of Ap­peals struck down the FCC’s net-neut­ral­ity rules, which barred In­ter­net ser­vice pro­viders from dis­crim­in­at­ing against or block­ing any web­sites. But the de­cision was based on the nar­row ques­tion of wheth­er the rules too closely re­sembled what are known as “com­mon car­riage” reg­u­la­tions.

On the broad­er is­sue of the FCC’s power to reg­u­late the In­ter­net, the court gave the com­mis­sion a huge win.

FCC Chair­man Tom Wheel­er is now try­ing to use that broad au­thor­ity to re­work the net-neut­ral­ity rules. But the de­cision also opened the door to a host of oth­er pos­sible In­ter­net reg­u­la­tions.

The FCC jus­ti­fied its net neut­ral­ity rules by point­ing to Sec­tion 706 of the Tele­com­mu­nic­a­tions Act, which says the agency has the power to pro­mote the de­ploy­ment of broad­band In­ter­net net­works.

The court largely de­ferred to the FCC, say­ing Con­gress gran­ted the agency the power to en­act reg­u­la­tions that pro­mote the “vir­tu­ous cycle” of In­ter­net in­nov­a­tion and net­work con­struc­tion.

The Re­pub­lic­an-con­trolled House likely didn’t think it was giv­ing the FCC sweep­ing power over the In­ter­net when it en­acted the law in 1996, but the pro­vi­sion could be the hook for a slew of new reg­u­la­tions.

Ber­in Szoka, pres­id­ent of the liber­tari­an group Tech­Free­dom, warned that the FCC may use its new power to en­force pro­vi­sions from the con­tro­ver­sial Stop On­line Pir­acy Act, bet­ter known as SOPA, which Con­gress aban­doned after a massive Web re­volt in 2012.

The FCC could, the­or­et­ic­ally, or­der In­ter­net ser­vice pro­viders and search en­gines to block web­sites of­fer­ing il­leg­al cop­ies of mu­sic and movies. The leg­al ar­gu­ment would be that on­line pir­acy dis­cour­ages en­ter­tain­ment com­pan­ies from pro­du­cing con­tent. There­fore, stamp­ing out pir­acy would en­cour­age the pro­duc­tion of more con­tent, lead­ing to more In­ter­net use, and ul­ti­mately the de­ploy­ment of more broad­band net­works.

“It could really be any­thing with­in the scope of com­mu­nic­a­tion,” Szoka said. Even if the agency doesn’t take form­al ac­tions, it could use the threat of its power un­der Sec­tion 706 to pres­sure com­pan­ies to com­ply, Szoka warned.

Har­old Feld, the seni­or vice pres­id­ent of Pub­lic Know­ledge, usu­ally ar­gues for ag­gress­ive FCC ac­tion to pro­tect con­sumers. But even he said the im­plic­a­tions of the court’s de­cision are “very troub­ling.”

Feld sug­ges­ted the FCC could im­pose pri­vacy pro­tec­tion reg­u­la­tions on Google and oth­er com­pan­ies un­der the the­ory that people would be more likely to use the In­ter­net if they felt their per­son­al in­form­a­tion was safe.

The or­der of Google’s search res­ults could also be a tar­get for reg­u­la­tion. Com­pet­it­ors like Mi­crosoft and Yelp have long ac­cused Google of ma­nip­u­lat­ing its search res­ults to fa­vor its own ser­vices.

App stores, smart-home devices, in­stant mes­saging, and cy­ber­se­cur­ity are just a few oth­er pos­sible areas for FCC reg­u­la­tion.

Any new In­ter­net rules un­der Sec­tion 706 would face im­me­di­ate court chal­lenges, and it’s un­clear how far the courts would let the FCC go. Oth­er pro­vi­sions of the Com­mu­nic­a­tions Act and con­sti­tu­tion­al pro­tec­tions such as the First Amend­ment put some lim­its on the FCC’s power over In­ter­net com­pan­ies. It’s un­likely that the D.C. Cir­cuit rul­ing will be the fi­nal word on the com­mis­sion’s In­ter­net au­thor­ity.

Google is not the only Web com­pany that’s un­easy with the im­plic­a­tions of the court’s rul­ing. Face­book, Ya­hoo, Amazon, and scores of oth­er com­pan­ies could be af­fected by new In­ter­net reg­u­la­tions.

But so far, Google has been the most vo­cal be­hind the scenes in rais­ing alarm about the scope of the FCC’s po­ten­tial new powers, ac­cord­ing to people fa­mil­i­ar with the dis­cus­sions. And the com­pany is ad­vised by an ex­pert on the com­mis­sion’s In­ter­net au­thor­ity: Aus­tin Schlick was the FCC’s gen­er­al coun­sel when it en­acted the net-neut­ral­ity rules, and he is now a Google law­yer.

Robert Mc­Dow­ell, a former Re­pub­lic­an FCC com­mis­sion­er, said Google should have thought through the con­sequences of sup­port­ing net-neut­ral­ity rules.

“Those who sub­scribe to the school of thought that says ‘please reg­u­late my rival but not me’ al­most al­ways live to re­gret it,” Mc­Dow­ell said. “Once you in­vite the gov­ern­ment in­to your space, it doesn’t want to leave any­one in that space alone.”

Al­though Pub­lic Know­ledge’s Feld ex­pressed con­cern about the FCC’s po­ten­tially broad power un­der Sec­tion 706, he ar­gued that it’s im­port­ant that the com­mis­sion have some au­thor­ity to reg­u­late In­ter­net ac­cess. So far, the FCC has de­clined to ap­ply the reg­u­lat­ory scheme it uses for tele­phone com­pan­ies to broad­band In­ter­net pro­viders.

“If 706 is the only tool we’ve got, then we’re go­ing to use it,” Feld said.