Comcast v. FCC

Citation: Comcast v. Federal Comms. Comm'n, 2010 U.S. App. LEXIS 7039 (D.C. Cir. April 6, 2010).

Factual Background
In 2007, through various experiments by the media, most notably the Associated Press, it became clear that Comcast was intermittently blocking the use of an application called BitTorrent and, possibly, other peer-to-peer (P2P) file-sharing programs on its network. Comcast eventually admitted to the practice and agreed to cease blocking the use of the P2P applications on its network. However, Comcast maintains that its actions were reasonable network management and not in violation of the Federal Communications Commission’s (FCC) policy.

In response to a petition from Free Press for a declaratory ruling that Comcast’s blocking of P2P applications was not “reasonable network management,” the FCC conducted an investigation into Comcast’s network management practices. The FCC determined that Comcast had violated the agency’s Internet Policy Statement when it blocked certain applications on its network and that the practice at issue in this case was not “reasonable network management.” The FCC declined to fine Comcast, because its Internet Policy Statement had never previously been the basis for enforcement forfeitures. Comcast appealed this decision to the U.S. Court of Appeals for the D.C. Circuit, as did other public interest groups.

Appellate Court Proceedings
On April 6, 2010, the D.C. Circuit vacated the FCC’s order against Comcast because the FCC had failed to tie its assertion of ancillary authority to any “statutorily mandated responsibility.”25 After dispensing with the FCC’s preliminary arguments against the court’s jurisdiction, the panel applied the test for ancillary jurisdiction it had announced in American Library Assn. v. FCC,26 and found the FCC’s argument insufficient to satisfy the standards.

The Supreme Court recognizes that the FCC has so-called “ancillary authority” to regulate services that it has not been granted express authority to regulate.27 The FCC did not claim that it had express authority to regulate cable Internet service. Rather, the agency argued that regulation of Internet services was “reasonably ancillary to the. . . effective performance of its statutorily mandated responsibilities.”28 The FCC relied primarily upon Section 230(b) of the Communications Act, which states that “it is the policy of the United States ... to promote the continued development of the Internet and other interactive computer services [and] to encourage the development of technologies which maximize user control over what information is received by individuals families and schools who use the Internet.”29 The FCC argued that this statement of policy, along with the general rulemaking authority in Title I, was sufficient to assert ancillary jurisdiction over cable Internet network management.

In American Library Assn. v. FCC, the D.C. Circuit recently held that the FCC may assert its ancillary authority when two conditions are met: (1) the Commission’s general jurisdiction grant under Title I covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibilities.30 The court agreed that condition one had been met. Cable Internet services falls within the general jurisdiction granted to the Commission under Title I. The court held, however, that the FCC had failed to satisfy the second condition because statements of policy could not be considered to be statutorily mandated responsibilities under the Communications Act.31

The court detailed each case heard by the Supreme Court and by the D.C. Circuit where ancillary jurisdiction was the basis for the FCC’s authority to act in the case. In each case, the court found that where the FCC had ancillary authority to exercise jurisdiction, the FCC’s argument for jurisdiction related to a specific grant of authority to regulate in a related area and did not rely solely on a policy statement, as the Commission had done here. The court expressed concern that if it had adopted the FCC’s argument and allowed ancillary authority to rest on statements of policy in the Communications Act, the FCC’s authority to regulate would have been nearly boundless and the agency could find reason to regulate in many new areas where Congress had not granted specific authority to do so.

The court also addressed the other statutory provisions upon which the FCC claimed to rely for jurisdiction.32 Some of these statutory provisions, such as Section 706 of the Communications Act,33 arguably might grant the FCC specific authority to regulate in an area reasonably related to the regulation of cable Internet services. In each case, however, the court found the FCC had failed in some way to properly advance the argument for jurisdiction on the basis of these other statutory provisions. Therefore, the court found that it could not hold that the FCC had ancillary authority to regulate cable Internet services based upon any of these specific grants of regulatory authority.