Many writers are coming to question the source of the Federal Communications Commission's authority to regulate Internet service providers' network management practices in the agency's quest to "preserve the free and open Internet" that we all value so highly. I examine this issue my new essay, "Jurisdiction: The $64,000 Question." Once again I conclude that none of the arguments the FCC has advanced to date concerning its "ancillary" authority to regulate the network management practices of broadband ISPs hold water. The Communications Act simply does not authorize the FCC to erect an elaborate regulatory framework for Internet services.
If the FCC is to regulate the Internet -- an outcome I do not think necessary or beneficial -- we would be better served by having Congress debate and pass such legislation, than by having unelected government officials attempt to make it up as they go along.
Express delegations of authority are important for two reasons: they both give power and limit its exercise in ways agreed upon by our elected representatives through duly enacted legislation. The problem with the FCC's conception of its ancillary jurisdiction is that is potentially limitless.
As I write in the essay, unchecked administrative power, no matter how well-intentioned, is dangerous. The doctrine of ancillary jurisdiction, properly understood, permits the FCC only to fill in small gaps in its statutory authority to take account of new developments closely related to the services the agency is authorized to regulate. But the courts have upheld this doctrine only when necessary, if not imperative, to the execution of its expressly granted regulatory responsibilities. The gap between the FCC's proposed net neutrality rules and the statutory provisions the agency claims authorize its action is not small, it is in the vernacular sense of the word, quantum.