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Jurisdiction: The $64,000 Question

Progress & Freedom Foundation Progress Snapshot Paper, Vol. 5, No. 12, November 2009

7 Pages Posted: 6 Nov 2009  

Barbara S. Esbin

Cinnamon Mueller

Date Written: November 4, 2009


Matthew Lasar asks the $64,000 question on Ars Technica: "Did Congress really give the FCC power to protect the Net?

The jurisdictional question, as Lasar notes, lies at the heart of the viability of the FCC's proposed net neutrality rules. The answer depends on one's view of what regulatory powers Congress bestowed upon the agency in the Communications Act of 1934, as amended: Broadly stated, the FCC was created and given jurisdiction over interstate wire and radio commerce in communication for the purpose of making available "a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges." It is in the understanding of specifically how the FCC was to go about carrying out this broad purpose that reasonable minds disagree.

The FCC has made clear its view that it may regulate the network management practices of broadband Internet service providers under its implied or "ancillary jurisdiction."

But Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, we expect the FCC will rely on its "ancillary jurisdiction," a position that amounts to "we can regulate the Internet however we like without waiting for Congress to act."

The problem with the doctrine of ancillary jurisdiction is that it is potentially limitless as exercise after exercise takes the FCC further and further away from its core congressionally-delegated regulatory responsibilities. Express delegations of regulatory authority by Congress are important for two reasons: they both give power and limit its exercise in ways agreed upon by our elected representatives through duly-enacted legislation. It is particularly important that unelected government officials stay within the bounds of these delegations. Our individual freedoms as well as our democracy depend on it.

Keywords: ancillary jurisdiction, jurisdiction,FCC,James Speta, Glen Robinson, Esbin, Lasar, net neutrality,Communications Act, 1934, common carrier, spectrum, wireless, network management, wireless regulation, Comcast P2P order, broadband regulation, undue process, internet regulation, Electronic Freedom Fou

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

Suggested Citation

Esbin, Barbara S., Jurisdiction: The $64,000 Question (November 4, 2009). Progress & Freedom Foundation Progress Snapshot Paper, Vol. 5, No. 12, November 2009 . Available at SSRN: or

Barbara S. Esbin (Contact Author)

Cinnamon Mueller ( email )

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