by Matthew L. Schafer
On Thursday, The Wall Street Journal published a short editorial regarding the net neutrality Order recently passed by the FCC. The new prophylactic rules are relatively, weak, essentially enforcing the current status quo. The editorial questioned both the FCC’s authority to enforce the rules and the need for the rules in general.
“On the eve of Christmas Eve, while you probably weren’t paying attention, the Obama Administration released the text of its new Internet regulations, which mark a significant pivot from the hands-off approach to the Web observed by previous Republican and Democratic Administrations,” the WSJ editorial said.
The WSJ went on to argue that the FCC did not have the “ancillary authority” to enforce its new rules. Ancillary authority is that authority granted to the FCC by the Communications Act, which allows it to enforce orders so long as they are “necessary in the execution of its functions.” Simply, its that power to regulate that isn’t statutorily granted to the FCC, but which the FCC can use to achieve the “effective performance of its statutorily mandated responsibilities.”
“Mr. Genachowski also continues to insist that the FCC has ‘ancillary’ jurisdiction over the Internet under the Telecommunications Act of 1996, notwithstanding a federal court decision earlier this year that said the law grants the agency no such regulatory authority,” the WSJ wrote.
The D.C. Court of Appeals did not rule that the FCC has no such authority in all cases. The Court in Comcast, conceded that in some cases the FCC does, in fact, have such authority, and laid out when those instances may occur.
“The Commission may exercise this “ancillary” authority only if it demonstrates that its action… is ‘reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities,’” the D.C. court wrote.
It appears then, that the question is not if the Commission has such authority, but when–which will be a question for the courts. Nonetheless, it is not only the court that may decide the future of the FCC’s new rules, but Congress. As the WSJ indicates, Rep. Marsha Blackburn and Sen. Kay Bailey Hutchison are both seeking to reverse the FCC’s Order.
“The real issue here is not that the Federal Government lacks the authority to sensibly regulate the Internet. Nor, even, that the Internet is in desperate need of regulation- it isn’t,” Blackburn wrote. “The issue is that the FCC is running out of useful things to occupy their time.”
Both Hutchinson and Blackburn have threatened to block the use of funds to implement the new rules and also use Congressional Review Act to overturn the rules. It is worth remembering, however, that these rules do not change much of anything. Indeed, they are prophylactic by definition.