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CONTACT: Barbara Esbin
April 6, 2010
(202) 969-2950
Esbin Statement on the D.C. Circuit's Decision in Comcast v. FCC

WASHINGTON D.C. — The D.C. Circuit ruled today in favor of Comcast in the company's challenge to an FCC enforcement action concerning its provision of Internet service. The following statement may be attributed to Barbara Esbin, Senior Fellow at The Progress & Freedom Foundation:

The D.C. Circuit's ruling reaffirms the primacy of the rule of law and the legislative authority of Congress to determine whether and how our nation's communications networks are to be regulated. As I have said from the outset, the FCC's action against Comcast's Internet network management practices was unlawful because Congress has not delegated to the FCC regulatory authority over the provision of Internet services, and the FCC may not self-generate such authority through creative use of the doctrine of implied or "ancillary jurisdiction." The court's decision rests on the foundational principles that the FCC's regulatory authority is not unbounded, the agency is not free to make it up as it goes along and the FCC possess no plenary authority to regulate an Internet service provider's network management practices.
As the D.C. Circuit wrote, the FCC may properly exercise its ancillary jurisdiction over matters not expressly mentioned in the Communications Act, but only when that exercise is reasonably ancillary to—that is, in support of—an expressly-delegated regulatory responsibility. The FCC could not show, despite strenuous efforts, that regulating Internet network management practices was reasonably related to any of its express regulatory mandates in the Act. This all-important limitation on the exercise of its implied powers, according to the court, is what keeps the agency from freeing itself "from its congressional tether." Paraphrasing an earlier Supreme Court decision, the court observed that the FCC's Comcast decision, not only "'strain[ed] the outer limits of even the open-ended and pervasive jurisdiction that has evolved by decisions of the Commission and the courts,'" it sought to "shatter them entirely."
It bears mention that the FCC's proposed "open Internet" rules are premised on the same jurisdictional theory—that the FCC may regulate on the basis of Congressional statements of policy alone (as opposed to statutorily mandated responsibility)—that the D.C. Circuit has now invalidated. This strongly suggests that the time has come for our elected representatives to take up the question of whether and how the FCC should regulate the provision of Internet services.

Esbin is available for comment and can be reached at

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



The Progress & Freedom Foundation