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A Communications Reform Priority: Curtailing FCC Ancillary Jurisdiction under Telecom Act § 706

Arielle Roth

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INTRODUCTION
Despite the Federal Communications Commission’s (FCC or Commission) 2016 legal victory in US Telecom Association v. FCC,1 the protracted battle over federal network neutrality rules persists. Through successful en banc petition or Supreme Court appeal by the petitioners, or at the hands of a new Commission, the reclassification of the Internet as a common-carriage service may ultimately be reversed. Notwithstanding the fate of the Open Internet Order, Title II reclassification represents only the tip of the iceberg with respect to FCC regulation of the Internet economy. Although much speculation has centered on FCC’s potential for regulatory initiatives under Title II, the next battles over Internet regulation will likely be fought under § 706 of the 1996 Telecommunications Act. This WORKING PAPER argues that the following areas are susceptible to Commission intervention under its highly expansive claims of ancillary powers under § 706:

  1. Neutrality beyond broadband providers;
  2. Privacy policies of edge providers; and
  3. Broadband service, notwithstanding the Open Internet Order.

Absent a major revision of federal communications law, Congress should prioritize clarifying the scope of FCC’s ancillary discretion under § 706. Such an effort is necessary to provide legal stability and encourage innovation and investment in the Internet economy in a regulatory climate currently racked by uncertainty and fluctuating partisan leadership.

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