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October 2nd, 2009 4:02 pm
Does the FCC Have the Statutory Authority to Impose Net Neutrality Regulations?

CFIF has commented extensively on the imprudent push by Federal Communications Commission (“FCC”) Chairman Julius Genachowski and others in the Obama Administration to impose “Net Neutrality” regulations on Internet network providers.  We’ve discussed how Net Neutrality is a solution in search of a problem that will stifle private investment in high speed networks and work counter to the President’s goal of universal broadband access.

But in addition to the policy arguments against Net Neutrality, the question remains whether the FCC even possesses the statutory authority to impose such regulations without Congress’ consent.

Barbara Esbin, Senior Fellow & Director of the Center for Communications and Competition Policy at The Progress & Freedom Foundation, analyzes that question in a recent paper titled, “The Audacity to Hope Regulatory Restraint Will Prevail.”  Her conclusion: “[N]o, it does not, at least not for the reasons the agency has advanced to date.”

Esbin writes:

The question of regulatory jurisdiction is not so directly implicated when the FCC propounds broad, but unenforceable, policy principles, as it did with its 2005 Internet Policy Statement. But legally binding ‘rules of the road,’ such as those envisioned by the agency’s Chairman, must rest on a convincing factual predicate and must come within the scope of the regulatory powers delegated to the FCC by Congress. And it is the latter that is called into question by the FCC’s reliance on the doctrine of ‘ancillary jurisdiction’ in its Comcast P2P Order, currently on review before the D.C. Circuit Court of Appeals, a court not especially hospitable to such claims. If the FCC’s jurisdictional theory falls before the D.C. Circuit, the most it may be able to achieve with its new rulemaking is an expanded set of policy principles. Well, one can hope.

Read the full paper here (.pdf).

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