Posted on 01/11/2010 5:04:28 PM PST by opentalk
A funny thing happened to the FCC Friday on its way to regulating the Internet, as a federal appeals court panel questioned the agencys authority to regulate the web. Theres no final decision yet, but an adverse ruling could stop the agencys Internet regulation plans in their tracks. And for good reason.
Last fall, the FCC proposed a set of open access, or net neutrality rules aimed at controlling how Internet service providers manage their networks. However it faced one rather inconvenient obstacle: there isnt anything in the Communications Act, or any other statute, actually giving it power to regulate such things. Internet service, by the FCCs own reckoning, is not a telecommunications service, nor is it cable TV, or broadcasting, or anything else the law give the FCC authority to regulate.
That detail, however, didnt bother the yes, we can rulemakers at the FCC, who asserted that they nevertheless had jurisdiction under a doctrine known as ancillary jurisdiction. This court-defined doctrine, itself to be found nowhere in the statute books holds that the Commission can in matters that fall within its general statutory grant of jurisdiction and are necessary to ensure the achievement of the Commissions statutory responsibilities.
It is a remarkable legal theory, allowing a regulatory agency to act in areas where there is no grant of authority, simply because it is related to an area in which authority has been granted. In effect, it is a horseshoes and hand grenades doctrine, in which close is good enough to count.
In the past, the doctrine has been used to justify such things as FCC regulation of cable television (back in the days when cable TV was basically an extension of broadcast television). But asserting it to regulate the Internet was a bit of a stretch.
It wasnt the first time the Commission made that stretch. Last year, the FCC issued a ruling against Comcast, for violation of the then existing policies on network management. Comcast sued, raising the question of FCC jurisdiction. That was the case that was argued before the D.C. circuit court of appeals Friday.
It didnt go well, as the FCC got an earful. You have yet to identify a specific statute, said Judge Raymond Randolph. As the FCCs lawyers metaphorically searched their pockets for something to cite, Judge David Sentelle added: You cant get an unbridled, roving commission to go about doing good.
An adverse decision would not just negate the Comcast decision, but also derail Commissions plans to finalize the new, more extensive regulations it formally proposed last October. The action would then move to Congress, which already considering legislation on the matter. Thats bad news for regulation proponents, who had been hoping for a quick win. But its good news for the rule of law and the idea that the power to regulate is nothing like either horsehoes or hand grenades.
Stay tuned.
“rulemakers at the FCC, who asserted that they nevertheless had jurisdiction under a doctrine known as ‘ancillary jurisdiction.’”
Is this like the principle whereby the land adjacent to wetland is also wetland (and, for that matter, the land adjacent to the land adjacent to the wetland).
Hoping the court pushes back on this.
Your freedom.
The FCC is going to be smiling when they come take it from you.
btt
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