Shaky Foundations of the Regulated Internet, The

Networks, the Internet, and Cloud Computing, Internet and Networks and Infrastructure

Article Snapshot

Author(s)

James Speta

Source

Journal of Telecommunications and High Technology Law, Vol. 8, No. 1, 2010

Summary

The FCC’s Comcast order was overly broad, so the author advocates more limited FCC jurisdiction over the Internet.

Policy Relevance

FCC jurisdiction over Internet transmission services is not founded in the Communications Act, thus in the Comcast order the reasoning relied on gave the FCC practically unrestricted authority over Internet services. This broad authority ought to be replaced with a limited jurisdiction scheme.

Main Points

  • The Comcast decision gives the Federal Communications Commission (FCC) broad authority to regulate Internet services. The decision gives the FCC as much power to regulate Internet services as it has over common carriers.
     
  • The current view of the Comcast decision is incorrect because it goes against the agency’s “ancillary jurisdiction” rationales. Ancillary jurisdiction could be a proper assertion of FCC jurisdiction over Internet services, but it ought not to apply in this context because the FCC only has authority over something that is adjutant to a service it has express authority to regulate.
     
  • One might claim that the FCC has no authority to regulate Internet services at all, but there are instances where the FCC can rightfully claim ancillary authority over Internet services.
     
  • A better approach to FCC regulation in this area is a compromise between broad authority and no authority at all. FCC authority should be recognized when the Internet carrier is providing something regulated by the Communications Act.
     
  • Congress should also expand FCC regulation to cover any Internet carrier that provides two-way service, which is a service that the provider offers generally to the public. Moreover, the FCC’s focus should shift toward regulating this type of activity and away from regulating media content.
     
  • The FCC should also have authority to stop unfair competition by Internet carriers. The language from antitrust law in the Federal Trade Commission (FTC) Act ought to be used.
     
  • The FCC should have power in this area over the FTC because it ought to be able to act preemptively to regulate Internet carriers and it is better suited for this role than the FTC because of history and expertise in this area.
     
  • The two-way service distinction, with express authority to regulate when unfair competition practices are used by Internet carriers, is the best approach to regulating Internet services. It is not overly broad and utilizes the FCC’s institutional expertise in regulation on a case-by-case basis.
                                       

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