The Audacity to Hope Regulatory Restraint Will Prevail

Abstract:     
Much ink already has been spilled over the September 21st announcement by FCC Chairman Genachowski to circulate a notice of proposed rulemaking expanding and codifying the FCC's four Internet policy principles. The key question is whether the FCC possesses the statutory authority it would require to expand and codify the Internet policy principles? No, at least not for the reasons the agency has advanced to date.

The question of regulatory jurisdiction is not so directly implicated when the FCC propounds broad, but unenforceable, policy principles, as it did with its 2005 Internet Policy Statement. But legally binding "rules of the road," must rest on a convincing factual predicate and must come within the scope of the regulatory powers delegated to the FCC by Congress.

And it is the latter that is called into question by the FCC's reliance on the doctrine of "ancillary jurisdiction" in its Comcast P2P Order, currently on review before the D.C. Circuit Court of Appeals, a court not especially hospitable to such claims.

Given the stakes, the Brief is surprisingly tepid in its defense of this exercise of the FCC's ancillary jurisdiction.

The Brief eschews detailed arguments in support of all seven statutory provisions it cited in the Comcast P2P Order, and rests its case almost entirely on section 230(b).

The remainder of the Brief offers only the barest support for the other sources of ancillary jurisdiction discussed in the Comcast P2P Order. In fact, in its opening pages, the Brief attempts to locate support for the ancillary jurisdiction claim on yet an eighth statutory provision, section 543. which was not even cited in the underlying order!

The FCC will find that the Communications Act constrains its ability to do much more than issue broad statements of policy and principle concerning the provision of Internet services.

Number of Pages in PDF File: 10

Keywords: FCC, genachowski, Internet Policy Statement, Comcast P2P Order,ancillary jurisdiction, comcast, bittorrent, Cohen v. US, Good Samaritan, cable, cable regulation,broadband regulation, cable television, Internet Freedom Preservation Act, Dorgan, Snowe,Communications Act ,internet traffic, internet ser

JEL Classification: D7, D73, K23, L21, L5, L51, L52, L63, L82, L86, L96, L98, O38

working papers series