Over at Twitter, our TLF blogging colleague Jerry Brito asks a smart question about the Federal Communications Commission’s recently-opened investigation of the Apple-Google spat over Apple’s recent decision to reject the Google Voice app from the iPhone App Store.  Jerry asks: “Maybe I should know this, but what authority does the FCC have to demand that Apple explain anything?”  Good question, Jerry!  But no, I don’t think there’s anything you’re missing.  We might consider this merely the latest chapter of the agency’s rogue operator history: If you can’t find the authority to do something, just assert it anyway and go for broke!  The idea of living within the confines of the law and paying attention to statutory authority seems like an alien concept to the FCC.  As my PFF colleagues Barbara Esbin and Adam Marcus have pointed out in their amazing recent law review article, “The Law Is Whatever the Nobles Do: Undue Process at the FCC,” when all else fails, the agency just asserts “ancillary jurisdiction” and claims that the whole world is their oyster. They argue:

The FCC’s means of asserting regulatory authority over broadband Internet service providers’ (“ISP”) network management practices is unprecedented, sweeping in its breadth, and seemingly unbounded by conventional rules of interpretation and procedure. We should all be concerned, for apparently what we have on our hands is a runaway agency, unconstrained in its vision of its powers.

Of course, even if we ignore the agency’s cavalier attitude about the law and statutory authority, there are other reasons to be concerned about FCC interference in this matter. Continue reading →

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