Academic journal article Federal Communications Law Journal

The Scope of the FCC's Ancillary Jurisdiction after the D.C. Circuit's Net Neutrality Decisions

Academic journal article Federal Communications Law Journal

The Scope of the FCC's Ancillary Jurisdiction after the D.C. Circuit's Net Neutrality Decisions

Article excerpt

TABLE OF CONTENTS  I.   INTRODUCTION II.  THE STATUTORY FRAMEWORK AND THE SUPREME COURT'S      ANCILLARY AUTHORITY DECISIONS III. JUDGE TATEL'S SYNTHESIS OF THE D.C. CIRCUIT PRECEDENT      A. Comcast v. FCC      B. Verizon v. FCC IV.  THE ANCILLARY JURISDICTION TEST AFTER VERIZON      A. Express Delegations Versus Mere Policy Statements      B. Consistency with the Act V.   CONCLUSION 

I. INTRODUCTION

Whether the Federal Communications Commission can and should reenact net neutrality rules similar to those invalidated by the U.S. Court of Appeals for the D.C. Circuit in Verizon v. FCC (1) has been the focus of most commentary on the case. But the decision in Verizon is also noteworthy for its effect on the scope of the FCC's "ancillary jurisdiction"--that is, the FCC's authority to adopt regulations based largely on the provisions in Title I of the Communications Act of 1934 (2) that grant the agency general, rather than specific, authority. This issue is important because the validity of many FCC regulations adopted since the enactment of the 1934 Act depends on the scope of the FCC's ancillary jurisdiction. Given the dynamic nature of the communications sector, questions concerning the scope of the FCC's ancillary authority are sure to arise again as new technologies emerge. This essay thus focuses on the scope of the FCC's ancillary authority after Verizon, rather than on how the FCC should respond to the opinion with respect to net neutrality. (3)

The provisions that provide the basis for the FCC's ancillary authority include section 2(a) of the Communications Act, (4) which gives the FCC jurisdiction over "all interstate and foreign communications by wire or radio;" section 1, (5) which provides that the FCC is required to endeavor to "make available ... to all the people of the United States ... a rapid, efficient, Nation-wide, and world-wide wire and radio communication service;" and section 4(i), which gives the FCC authority to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions." (6)

As the Supreme Court has explained, although the Act gives the FCC "expansive powers," (7) they are not "unbounded." (8) In 1968, in United States v. Southwestern Cable, the Court emphasized the expansive nature of the FCC's powers in approving the FCC's regulation of community antenna television ("CATV"), an early version of cable television, at a time when the Communications Act made no mention of CATV. (9) The Court found "no need ... to determine in detail the limits of the Commission's authority," adding that "[i]t is enough to emphasize that the authority which we recognize today under [section 2(a)] is restricted to that reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting." (10) The Court thus introduced the concept of "ancillary" jurisdiction. (11)

In 1979, in FCC v. Midwest Video Corp. (Midwest Video II), the Court held that the FCC "was not delegated unrestrained authority" and rejected the FCC's attempt to exercise its ancillary authority to require CATV operators to set aside a portion of their channel capacity for access by third parties. (12) The Court noted that the Act specifically prohibits the FCC from regulating broadcasters as common carriers, concluding that the FCC "may not regulate cable systems as common carriers" either. (13)

Since 1979, federal courts of appeals--primarily the D.C. Circuit--have attempted to develop the ancillary jurisdiction doctrine to recognize the FCC's broad authority under the Act while ensuring that it is not unbounded. Two recent net neutrality cases represent the court's most recent attempt to navigate between these poles. (14) The Communications Act is hardly a model of clarity with respect to the limits on the FCC's power, yet neither the Supreme Court nor the federal courts of appeals have provided a clear framework for determining whether a particular exercise of ancillary authority is permissible. …

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