FCC Authority to Regulate the Internet: Creating It and Limiting It

Abstract

This short paper discusses the FCC's authority, under its so-called ancillary jurisdiction (under Title I of the Communications Act), to address competition problems that may arise in Internet markets. It is argued that the FCC likely does not have jurisdiction to address most Internet regulatory issues, because whatever expansive readings such ancillary jurisdiction has received in the past are no longer tenable. The paper proposes, instead, a new, limited statutory interconnection rule, which the FCC could enforce in limited ways in Internet markets.

The paper also argues that, even if the FCC does have authority to develop its own common law of Internet regulation, a limited grant of statutory authority is a superior regulatory construct. The paper also argues that FCC administration of this proposed statute is superior to remitting all Internet interconnection problems to the common law processes of antitrust.

Professor Philip Weiser's contribution to the same journal issue (also available on SSRN) takes a different, more expansive view of the FCC's ancillary jurisdiction.

Keywords: Internet, Federal Communications Commission, Interconnection

JEL Classification: K21, K23, L43, L96