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January 20, 2010
EFF Calls on FCC to Close Loopholes in Proposed Regs in Net Neutrality Comment; Questions Whether FCC Has Jurisdiction to Regulate ISPs
EFF recently filed its Comment to the FCC's proposed regs for net neutrality, warning that as drafted they could let the entertainment industry and law enforcement hinder free speech and innovation. The Comment also argues that the FCC lacks statutory authority to adopt any proposed net neutrality rules. "The proposed regulations 'rest on no apparent statutory foundation and, thus, appear to be ancillary to nothing.'”
The Supreme Court has made it clear that “the Commission was not delegated unrestrained authority” and does not have “unbounded” jurisdiction. Yet the Commission’s theory of ancillary jurisdiction as set forth in the NPRM effectively gives the agency plenary authority to regulate the Internet. In the words of Commissioner McDowell, “Under the analysis set forth in the [Comcast Network Management Practices] order, the Commission apparently can do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment.” This unprecedented overreach raises the specter of discretionary FCC regulation of the Internet not just in the area of net neutrality, but also in a host of other areas.
Essentially EFF maintains that the the FCC doesn't have jurisdiction over ISPs sufficient to adopt and enforce the proposed regulations. Sounds like the groundwork for litigation is being laid should the FCC's net neutrality rules be found unacceptable by EFF and others. [JH]