Horseshoes, Hand Grenades, and the FCC: Will the Courts Ground Internet Regulation?

James Gattuso / January 11, 2010

A funny thing happened to the FCC Friday on its way to regulating the Internet, as a federal appeals court panel questioned the agency’s authority to regulate the web. There’s no final decision yet, but an adverse ruling could stop the agency’s 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 isn’t anything in the Communications Act, or any other statute, actually giving it power to regulate such things. Internet service, by the FCC’s 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, didn’t 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 Commission’s statutory responsibilities.”
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