Heartland Institute Comment on Comcast v. FCC Decision

April 06, 2010
Dan Miller

Information technology and legal experts at the Chicago-based Heartland Institute offered the following comments on the April 6, 2010 decision by the United States Court of Appeals for the District of Columbia Circuit in Comcast v. FCC.

You may quote from their statements below or contact them directly for further information.

“This decision firmly slaps the hand of a federal agency that has been trying to grab new regulatory powers in the name of net neutrality that are well beyond its congressional mandate. In doing so, the court struck a blow on behalf of advocates of limited government and the idea that specific legislation, not arbitrary regulation, should be the law of the land.

“The court correctly ruled that the FCC’s ‘ancillary authority’ over the broadcast and cable industries ‘is not the equivalent of untrammeled freedom to regulate activities’ on the Internet, too. Consumers dodged a bullet here, as a decision ratifying the FCC’s power-grab would have stifled investment and strangled the vibrant broadband market.

“I’m worried, however, that the FCC will ignore the clear instructions of the court and attempt to cram broadband into an ill-fitting Title II regulatory structure without first getting authority from Congress. It is probably tempting for the FCC to do so because Congress seems reluctant to explicitly grant the commission the power to enforce strict net neutrality rules.

“FCC Chairman Julius Genachowski has said he wants the FCC to be the ‘cop on the beat’ in the digital economy. But this decision by the DC Circuit makes it clear that he has to first go to Congress to get his badge.”

James G. Lakely
Co-director, Center on the Digital Economy
Managing Editor, InfoTech & Telecom News
jlakely@heartland.org
626-421-9414

“From a legal standpoint, the FCC’s arguments in the Comcast case were feeble, and the FCC’s efforts to regulate so-called ‘net neutrality’ were resoundingly slapped down, as they deserved to be. Congress has not granted the FCC the power to regulate network management practices, the court held.

“The FCC relied on general and vague statements of Congressional policy, which the court held, properly, are legally insufficient to support the regulation at issue. ‘[A]dministrative agencies may [act] only pursuant to authority delegated to them by Congress,’ the court wrote. ‘Policy statements are just that—statements of policy. They are not delegations of regulatory authority.’ The FCC does not have ‘untrammeled freedom’ to regulate Comcast’s network management practices.

“The FCC may cure its lack of congressional authority by seeking legislation granting this authority to it. In the meantime, however, this ruling was a victory for those who rightly opposed an embarrassingly expansive regulatory power grab by the FCC.”

Maureen Martin, J.D.
Senior Fellow, Legal Affairs
The Heartland Institute
mmartin@heartland.org
920-229-6670