It’s not often that a company wins the triple-crown like Google did in its recent “agreement” with Verizon regarding net neutrality. But, then again, it’s not often that the FCC is betting so publicly for a particular company’s horse as the FCC has been with Google and net neutrality. So what are the three wins for Google? Read the rest of this entry »
Posts Tagged ‘ Network Management ’
An Analysis of the FCC’s Proposed Net Neutrality Rules: The FCC Lacks Jurisdiction to Eliminate “Reasonableness” From Net Neutrality Rules
“The Force is what gives a Jedi his power.” Obi-Wan Kenobi, Star Wars (1977).
The FCC derives its power from Congress. For an FCC rule to have the force of law, it must fall within the scope of the authority Congress has delegated to the FCC. (See American Library Ass’n v. FCC, 406 F.3d 689, 691 (D.C. Cir. 2005).) One problem with the FCC’s proposed net neutrality rules is that they attempt to exercise more power than Congress has given the agency. Although it’s been a long time since I’ve indulged in a jurisdictional analysis, I’ll do my best below to explain why the FCC lacks jurisdiction to enact its proposed rules.
In the net neutrality NPRM, the FCC indicates its intention to rely on its “ancillary jurisdiction” to impose net neutrality rules on broadband Internet access service providers. (NPRM at paragraphs 83-87.) To exercise ancillary jurisdiction, the subject of the regulation must be reasonably ancillary to the effective performance of the Commission’s various responsibilities for “something.” (See Comcast Network Management Practices Order at paragraph 15.) In the Comcast Network Management Practices Order, the FCC found jurisdictional “somethings” in sections 1, 201, 230(b), 256, 257, and 601(4) of the Communications Act as well as section 706 of the Telecommunications Act of 1996. In the NPRM, the Commission adds Title III generally to the mix of potential statutory “somethings” underpinning its ancillary authority. Read the rest of this entry »
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