In Comcast v FCC, the FCC is attempting to sanction Comcast for interfering with internet services – and interfering with internet services is against the principles of “net neutrality.” However, Comcast is defending on what this author believes is a very effective ground – that the FCC does not have authority to regulate net neutrality.
The FCC is given its authority by the Communications Act of 1934, as amended many, may times over the years including by the Telecommunications Act of 1996. The problem for the FCC in this case is that the Communications Act has not been amended to empower the FCC to address net neutrality. The FCC normally needs explicit jurisdiction, granted by Congress and the President, in order to regulate communication subjects.
Of course there are some exceptions. For example, when the subject is “reasonably ancillary” to a subject that the FCC has explicit authority over, the courts have held that regulation is OK. Even so, the FCC can go too far in that regulation. The reasonably ancillary doctrine was applied to cable television cases. US v. Southwestern Cable 392 US 197 (1968). However, the FCC went too far in its “ancillary regulation,” and the courts rejected additional regulation in FCC v. Midwest Video. The jurisdiction of the FCC over cable television was eventually cleared up in the Cable Communications Policy Act of 1984.
So which will it be in this case? The appeals court has yet to rule. So this is an instance where FCC regulation is not certain. In cases where the FCC overreaches, or where the FCC does not “do its homework,” the courts are not afraid to overturn the FCC’s rules.