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CONTACT: Amy Smorodin
August 10, 2009
(202) 289-8928
FCC Lacks General Authority to Regulate Internet
PFF, Law Professors File Amicus Brief in Comcast v FCC

WASHINGTON D.C. - In the Comcast P2P Order, the Federal Communications Commission's assertion of ancillary jurisdiction exceeds previously settled boundaries, explains Senior Fellow Barbara Esbin in an amicus brief that was co-authored with two distinguished legal professors and filed today in the D.C. Circuit Court of Appeals.  Moreover, the FCC's expansive theory of its ancillary authority would grant it completely unlimited regulatory powers over information services.  Due to the departure from settled law and the absence of any indication that Congress intended the FCC to regulate Internet services, the Order should be vacated.

The brief, filed with James B. Speta, Professor at the Northwestern University School of Law, and Glen O. Robinson, David and Mary Harrison Distinguished Professor Law Emeritus at the University of Virginia Law School, identifies two issues with the FCC's justification of its regulatory authority in the Comcast P2P Order.

First, the Order dramatically expands the FCC's authority by imposing regulation on a communications service that is not adjunct to any of the services that the Communications Act identifies as within the agency's regulatory powers.  In each case in which a court has affirmed the FCC's ancillary jurisdiction, "the regulation was over an adjunct to a regulated service," and the "FCC regulation of 'adjuncts' must still be tied, with the necessary closeness, to its explicit powers over the regulated services."  In contrast, there is nothing in the Act which delegates any express authority to the FCC to regulate Internet service.  "If anything," the authors explain, "history indicates Congress's affirmative desire to keep such services unregulated."  Although the Commission cites seven separate provisions of the Act as supporting its claims of ancillary jurisdiction, "The exercise itself - of looking for hints of authority scattered through the Act - should have convinced the Commission that Congress did not actually delegate it authority to make law for Internet services," the authors state.  "Congress would have been clear had it intended to do so."

Second, the theory of ancillary authority put forth in the Order would grant the agency unrestrained regulatory power to decide whether or not to take any step that affects the efficiency, price, or quality of Internet service.  "Such standardless discretion is contrary to the Act," the authors explain, "as well and the foundational principle that agencies only have the authority conferred by Congress, which ensures accountability."

The brief is available on the PFF website.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



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