Restoring Limits on the FCC's Ancillary Authority
Verizon’s pending appeal of the Federal Communications Commission’s network neutrality order presents one of the most significant legal questions in modern telecommunications policy: whether, and to what extent, the FCC can regulate Internet activity.
New FCC Chairman Tom Wheeler has stated clearly that “regulating the Internet is a non-starter.” But the FCC’s actions over the last several years belie that notion. Since 2007, the FCC has enacted binding regulations on a wide range of actors within the Internet ecosystem, including Internet service providers, Voice-over-Internet-Protocol (VoIP) applications, Over-the-Top text message services, and Internet-based providers of Telecommunications Relay Services. The FCC enacted each of these rules pursuant to a theory of jurisdiction that, at times, has seemed virtually limitless in its reach over any communication by wire or radio. Whether the agency will successfully defend its net neutrality rules will turn largely upon its ability to defend this jurisdictional theory, known as Title I ancillary authority.