But that doesn't mean the EFF supports the Federal Communications Commission's efforts to craft neutrality rules. In comments filed today, the civil rights organization says the FCC lacks authority to issue neutrality regulations that would ban ISPs from discriminating against content.
"Congress has not deputized the FCC to be a free roving regulator of the Internet," the group argues. "So while EFF strongly endorses the goals of this commission ... a limitless notion of ancillary jurisdiction would stand as an open invitation to future commissions to promulgate 'policy statements,' issue regulations, and conduct adjudications detrimental to the Internet."
The EFF has warned of this prospect before. The day before the FCC proposed rules to ban Internet service providers from discriminating -- similar to the common carrier rules that govern telephone services -- the EFF sounded the alarm about a government "power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post."
Meanwhile, a coalition of other advocacy groups including Public Knowledge, Media Access Project, New America Foundation, Center for Media Justice and Consumers Union, is arguing the exact opposite.
Those organizations say the FCC currently has authority to ban ISPs from discriminating. But they also argue that the FCC could end any doubt about the issue by simply reclassifying Internet access as a common carrier service -- as had been the case until 2005. "A reclassification would not include a return to full price regulation, but would protect consumers and allow for increased competition, among other benefits," the groups argued in a statement issued this afternoon.
Should the FCC go ahead and enact neutrality rules, cable and telecom companies are certain to ask a court to invalidate those regulations on the ground that the commission lacked jurisdiction for them.
In fact, a court might decide that issue before the FCC even finishes with its rulemaking. Last week, a federal appeals court indicated that it was considering whether to vacate an FCC order sanctioning Comcast for interfering with peer-to-peer traffic on the ground that the FCC had no authority to regulate the Web.
Of course, even that wouldn't end the debate over whether ISPs should have to follow neutrality rules -- but it would shift the discussion to Congress. So far Congress has shown no inclination to enact neutrality legislation. That might change, however, if courts rule that the FCC can't create neutrality rules without an assist from elected officials.