Court Appears Skeptical of Broad FCC Authority
January 8, 2010
CDT has long expressed significant concern about the FCC asserting a broad concept of regulatory authority over Internet related matters. When President Obama was preparing to take office, we highlighted this specific concern in our transition memo on Internet neutrality. Based on the Comcast Corporation v. FCC oral argument held this morning, the D.C. Circuit seems to share our concern. The three-judge panel appeared unwilling to accept that the FCC has the jurisdiction it asserted in a 2008 order against Comcast relying, among other provisions, on the very general language in 47 U.S.C. § 230(b) expressing support for the continued development of the Internet and online services. The judges expressed deep skepticism about a theory of FCC ancillary jurisdiction that has no discernable limits.
Depending on how the panel rules in Comcast’s appeal, that skepticism could have a significant impact on the FCC’s current Internet neutrality rulemaking. CDT will be filing comments next week in support of the proposed rules but asserting a narrow theory of FCC jurisdiction for its action. The arguments this morning suggest that if any FCC neutrality rules are going to survive judicial scrutiny, they must be based on a strictly cabined theory of jurisdiction. While we still believe the best long-term solution here is for Congress to explicitly provide the FCC with carefully limited authority, we do believe the Commission has sufficient authority to act in the current rulemaking proceeding if it does so on a narrow jurisdictional basis that asserts concrete limiting principles. We will continue to urge the FCC to do just that.