Home / Blogs

Comcast v. FCC - "Ancillary Jurisdiction" Has to Be Ancillary to Something

Susan Crawford

Big news today - Judge Tatel has written the D.C. Circuit's opinion in Comcast v. FCC, and Comcast wins.

Bottom line: The FCC didn't have regulatory authority over Comcast's unreasonable network management practices because it failed to tie that authority to any express statutory delegation by Congress.

FCC can't rely on Title I's "necessary and proper" clause to give it jurisdiction over Comcast's unreasonable network management practices, because this kind of "ancillary jurisdiction" has to be necessary to further its regulation of activities over which it DOES have express statutory authority. (Example: the FCC 40 years ago went after cable to protect broadcast. It didn't have statutory authority over cable, but it did over broadcast — and the Supreme Court agreed that its exercise of power over cable was "reasonably ancillary" to its power over broadcast.)

FCC had said that the "necessary and proper" clause, by itself, gave it authority — but this claim has no particular limits. If we believe that agencies act under delegated authority from Congress, there has to be some link in the FCC's order to an express statutory delegation of authority.

Implications: There are both narrow and broad stories to be told here.


The next time the FCC wants to issue an Order or otherwise exercise power over high-speed Internet access providers, it had better be very clear about the source of its power, and it can't rely on just its "necessary and proper" clause in Title I.


FCC's arguments for its power over high-speed Internet access providers generally are now in jeopardy. It can't rely on Brand X as an affirmation of Title I authority, because the Court in that case simply deferred to the Commission's regulatory classification of cable modem services.

FCC's powers to impose consumer privacy protections on broadband providers or mandate the publication of cost information by them are now in jeopardy. These key elements of the National Broadband Plan may not be enforceable under Title I, and attempts to carry out these portions of the plan are likely to be the subject of heated litigation. Similarly, its nondiscrimination rulemaking is now in jeopardy, because that step depended on the same legal assertions that the DC Circuit found to be unpersuasive in today's opinion.

Next steps:

The FCC will likely take a deep breath and consider its options.

By Susan Crawford, Professor, Cardozo Law School in New York City. More blog posts from Susan Crawford can also be read here.

Related topics: Access Providers, Law, Net Neutrality, Policy & Regulation, Telecom


Don't miss a thing – get the Weekly Wrap delivered to your inbox.


Reply here .. Suresh Ramasubramanian  –  Apr 07, 2010 5:11 AM PDT


It got too long for a regular reply here, sorry.

Paragraphs 706 and 230 are the "something" Richard Bennett  –  Apr 07, 2010 3:57 PM PDT

The court told the FCC's bumbling lawyers that their best source of ancillary authority was paragraphs 706 and 230 of the Comms Act. But the FCC didn't use 706 in the Comcast order, and abandoned 230 in oral arguments in the appeal.

One might reasonably wonder if the FCC sandbagged this case in order to obtain a pretext for Title II reclassification.

To post comments, please login or create an account.

Related Blogs

Related News

Explore Topics

Dig Deeper

Mobile Internet

Sponsored by Afilias Mobile & Web Services

DNS Security

Sponsored by Afilias


Sponsored by Verisign

IP Addressing

Sponsored by Avenue4 LLC

Promoted Posts

Buying or Selling IPv4 Addresses?

Watch this video to discover how ACCELR/8, a transformative IPv4 trading platform developed by industry veterans Marc Lindsey and Janine Goodman, enables organizations to buy or sell IPv4 blocks as small as /20s. more»

Industry Updates – Sponsored Posts

Join Neustar's Town Hall Meeting and Help Shape the Future Of .US

Why the Record Number of Reverse Domain Name Hijacking UDRP Filings in 2016?

Leading Internet Associations Strengthen Cooperation

i2Coalition to Present Tucows CEO Elliot Noss With Internet Community Leadership Award

Michele Neylon Appointed Chair Elect of i2Coalition

2016 U.S. Election: An Internet Forecast

MarkMonitor Supports Brand Holders' Efforts Regarding .Feedback Registry

US Court Grants DCA Trust's Motion for Preliminary Injunction on .Africa gTLD

Dyn Weighs In On Whois

IBCA Presentation to ICANN GAC on Protection of Geographic Names in New gTLDs

Domain Name .Africa Faces Hurdles - Q&A with Sophia Bekele

Nominum Announces Future Ready DNS

Video Interviews from ICANN 50 in London

DotConnectAfrica Delegates Attend the Kenya Internet Governance Forum

Neustar to Launch usTLD Stakeholder Council

DotConnectAfrica Attends Transform Africa 2013 Summit in Rwanda

dotMobi and Digital Element Announce Strategic Partnership

Comments and Questions by DCA Trust on .Africa at the ICANN-47 Public Forum, Durban SA

Dyn Research: CDN Adoption Across Our Customer Base

Neustar Expands Professional Services Offerings for Communications Service Providers