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Jurisdiction as Competition Promotion: A Unified Theory of the FCC's Ancillary Jurisdiction

58 Pages Posted: 16 Jun 2009 Last revised: 23 Dec 2013

John Blevins

Loyola University New Orleans College of Law

Date Written: June 11, 2009

Abstract

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

Suggested Citation

Blevins, John, Jurisdiction as Competition Promotion: A Unified Theory of the FCC's Ancillary Jurisdiction (June 11, 2009). Florida State University Law Review, Vol. 36, 2009. Available at SSRN: https://ssrn.com/abstract=1418121

John F. Blevins (Contact Author)

Loyola University New Orleans College of Law ( email )

7214 St. Charles Ave., Box 901
Campus Box 901
New Orleans, LA 70118
United States

HOME PAGE: http://www.law.loyno.edu/faculty-staf/john-f-blevins

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