Part I: FCC
We’re wholly in favor of net neutrality in practice, but a finding of ancillary jurisdiction here would give the FCC pretty much boundless authority to regulate the Internet for whatever it sees fit. And that kind of unrestrained authority makes us nervous about follow-on initiatives like broadcast flags and indecency campaigns. In general, we think arguments that regulating the Internet is “ancillary” to some other regulatory authority that the FCC has been granted just don’t have sufficient limitations to stop bad FCC behavior in the future and create the “Trojan horse” risk we have long warned about.
For what it’s worth, Section 706 itself isn’t a great hook for FCC authority to regulate non-neutral behavior. 706 authorizes the FCC to take steps to stimulate build-out of telecommunications infrastructure, especially in order to increase the reach of telecom services to more Americans. (In the language of the statute, the FCC “shall encourage the deployment on a reasonable and timely basis of advanced communications capability.”) While promoting network openness may somehow result in the building of new infrastructure—laying more fiber, etc.—the suggestion that regulating the Internet is “ancillary” to the effective performance of the FCC’s 706 responsibilities is a stretch and seems far beyond what Congress intended with this section. None of the other provisions cited in the Order are very promising either.
If the D.C. Circuit does hear the Verizon and MetroPCS cases, we think it’s very likely that they’ll again hold that the FCC’s latest argument for ancillary jurisdiction under 706 doesn’t give it a pass to regulate the Internet.
We’re wholly in favor of net neutrality in practice, but a finding of ancillary jurisdiction here would give the FCC pretty much boundless authority to regulate the Internet for whatever it sees fit. And that kind of unrestrained authority makes us nervous about follow-on initiatives like broadcast flags and indecency campaigns. In general, we think arguments that regulating the Internet is “ancillary” to some other regulatory authority that the FCC has been granted just don’t have sufficient limitations to stop bad FCC behavior in the future and create the “Trojan horse” risk we have long warned about.
For what it’s worth, Section 706 itself isn’t a great hook for FCC authority to regulate non-neutral behavior. 706 authorizes the FCC to take steps to stimulate build-out of telecommunications infrastructure, especially in order to increase the reach of telecom services to more Americans. (In the language of the statute, the FCC “shall encourage the deployment on a reasonable and timely basis of advanced communications capability.”) While promoting network openness may somehow result in the building of new infrastructure—laying more fiber, etc.—the suggestion that regulating the Internet is “ancillary” to the effective performance of the FCC’s 706 responsibilities is a stretch and seems far beyond what Congress intended with this section. None of the other provisions cited in the Order are very promising either.
If the D.C. Circuit does hear the Verizon and MetroPCS cases, we think it’s very likely that they’ll again hold that the FCC’s latest argument for ancillary jurisdiction under 706 doesn’t give it a pass to regulate the Internet.