Jurisdiction as Competition Promotion: A Unified Theory of the FCC's Ancillary Jurisdiction
58 Pages Posted: 16 Jun 2009 Last revised: 23 Dec 2013
Date Written: June 11, 2009
The FCC’s “ancillary jurisdiction” refers to the agency’s residual authority to regulate matters over which it lacks explicit statutory authority under the Communications Act of 1934. Because many of today’s most controversial and consequential policy debates involve new technologies not explicitly covered by that statute, the scope of the FCC’s ancillary jurisdiction has taken on a critical new importance in recent years. In particular, the future of federal Internet policy depends on resolving the questions surrounding ancillary jurisdiction. In this article, I provide a new theory of the FCC’s ancillary jurisdiction, arguing that it is best understood as an authority to promote market competition. More specifically, ancillary jurisdiction has primarily addressed and promoted competition in markets where vertical leveraging is a concern – particularly those involving dominant incumbent infrastructure providers. My argument has both a positive and normative dimension. Descriptively, I offer the novel argument that the competition-promotion framework provides the most persuasive and coherent account of the seemingly incoherent line of cases reviewing the FCC’s ancillary jurisdiction. Normatively, I argue that the FCC’s ancillary jurisdiction should be exercised in this manner, in large part to protect the doctrine’s viability in the face of increasing criticism and to shape it in a way that both promotes competition and limits agency capture.
Keywords: FCC, ancillary jurisdiction, telecommunications, Comcast, Title I
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