'In the Matter of Comcast Corporation v. FCC,' Amicus Brief of James Speta, Glen Robinson, Barbara Esbin, Others, in the DC Circuit U.S. Court of Appeals

Abstract

In the Comcast P2P Order, the FCC's assertion of ancillary jurisdiction exceeds previously settled boundaries. Moreover, the FCC's expansive theory of its ancillary authority would grant it completely unlimited regulatory powers over information services. Due to the departure from settled law and the absence of any indication that Congress intended the FCC to regulate Internet services, the Order should be vacated. Two issues with the FCC's justification of its regulatory authority in the Comcast P2P Order: First, the Order dramatically expands the FCC's authority by imposing regulation on a communications service that is not adjunct to any of the services that the Communications Act identifies as within the agency's regulatory powers. In each case in which a court has affirmed the FCC's ancillary jurisdiction, the regulation was over an adjunct to a regulated service, and the FCC regulation of adjuncts must still be tied, with the necessary closeness, to its explicit powers over the regulated services. In contrast, there is nothing in the Act which delegates any express authority to the FCC to regulate Internet service. If anything, history indicates Congress's affirmative desire to keep such services unregulated. Second, the theory of ancillary authority put forth in the Order would grant the agency unrestrained regulatory power to decide whether or not to take any step that affects the efficiency, price, or quality of Internet service. Such standardless discretion is contrary to the Act, as well and the foundational principle that agencies only have the authority conferred by Congress, which ensures accountability.