A funny thing happened to the FCC Friday on its way to regulating the Internet: a federal appeals court panel questioned the agency’s authority to regulate the web. There’s no final decision yet, but an adverse ruling could stop the agency’s Internet regulation plans in their tracks. And for good reason.
In proposing new neutrality rules last October, the FCC one rather inconvenient obstacle: there isn’t anything in the Communications Act, or any other statute, actually giving them power to regulate such things. Internet service, by the FCC’s own reckoning, is not a telecommunications service, nor is it cable TV, or broadcasting, or anything else the law give the FCC authority to regulate.
The Commission, as it had in last year’s Comcast decision, dismissed such details, citing “ancillary jurisdiction.” This court-defined doctrine, itself to be found nowhere in the text of the Communications Act, holds that the Commission can in matters that fall within its general statutory grant of jurisdiction and are “necessary to ensure the achievement of the Commission’s statutory responsibilities.”
It is in itself a remarkable legal theory, allowing a regulatory agency to act in areas where there is no grant of authority, simply because it is related to an area in which authority has been granted. In a very real sense, it is a “horseshoes and hand grenades” doctrine, in which close is good enough to count. Even within the framework of ancillary jurisdiction, however, the case for jurisdiction in this case is startlingly tenuous and dangerously broad. (For an excellent analysis of the problems, see James Speta’s new study here.)
On Friday, the FCC got to air out its arguments in court, during oral arguments in the appeal of the Comcast ruling. By all accounts, it didn’t go well. “You have yet to identify a specific statute,” said Judge Raymond Randolph at one point. As the FCC’s lawyers metaphorically searched their pockets for something to cite, Judge David Sentelle added: “You can’t get an unbridled, roving commission to go about doing good.”
Of course, comments at oral arguments don’t always signal how a case will be decided. Still, things aren’t looking good for the FCC. And an adverse decision would not just negate the Comcast decision, but also derail Commission’s plans to finalize the new, more extensive regulations they formally proposed last October. As former FCC general counsel Sam Feder put it: “A lot of regulation — both present and future — could go down with this case.”
The next step would be for everyone to trundle on over to Capitol Hill to continue the foodfight over net neutrality. That’s bad news for regulation proponents, who had been hoping for a quick win. But its good news for the rule of law, and the idea that the power to regulate isn’t at all similar to horsehoes. Or hand grenades.