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Tuesday, April 06, 2010

Appeals Court demolishes FCC legal argument for ancillary jurisdiction without Title I argument in Comcast

As I was saying, it'll be years before the US has any hard-and-fast net neutrality regulation...This case [Comcast v. FCC (2010) No. 08-1291] is a terrible battering the FCC appeal took, and seems to point to a need for net neutrality legislation: 'The Commission is seeking to use its ancillary authority to pursue a stand-alone policy objective, rather than to support its exercise of a specifically delegated power'. I'll post more as I read US cyberprofs' take on it, but for now see Crawford and Frieden's views.
'Two decisions, like the many we have already discussed, upheld the Commission’s exercise of ancillary authority because, unlike here, the Commission had linked its action to a statutory delegation of regulatory authority. See United Video, Inc. v. FCC, 890 F.2d 1173, 1182–83 (D.C. Cir. 1989) (upholding rules that, like those upheld in Southwestern Cable, limited the ability of cable companies to import programming into a broadcaster’s market); GTE Serv. Corp. v. FCC, 474 F.2d 724, 729–30 (2d Cir. 1973) (upholding Commission regulation of “data processing activities of common carriers” based on the Commission’s concern “that the statutory obligation of the communication common carrier to provide adequate and reasonable services could be adversely affected”). In another case, we rejected the Commission’s argument, similar to the one it makes here, that it could exercise ancillary authority on the basis of policy alone. Motion Picture Ass’n of Am. v. FCC, 309 F.3d 796, 806–07 (D.C. Cir. 2002) (finding the Commission’s “argument that [its] video description rules are obviously a valid communications policy goal and in the public interest” insufficient to justify its exercise of ancillary authority.'

1 comment:

Russ said...

Hey Chris,

Interesting, huh? The court zonked the FCC immediately, not even considering Comcast's other arguments.

The 'regulators should not make policy' line favoured by Cameron is more hard law in the US.

The FCC went way too far given the statutory context. Legislation is definitely needed to support rules, particularly rules that have a big impact. Even then, other legal avenues remain open for Comcast and the NCTA. I think you are correct when you say it could be years (if ever!).

Take care,