Over the past decade, the Internet has matured from its dial-up infancy into the nation's dominant communications infrastructure. Such rapid growth and accessibility--while fostering free speech and innovation like nothing before--has nonetheless created complex regulatory and policy questions for both the Federal Communications Commission (FCC) and the cable companies providing the nation's broadband Internet access. For instance, Comcast, one such Internet provider, has recently brought to the fore the question of how, and to what extent, the FCC can ensure an open and accessible Internet through the company's recent actions in selectively targeting and interfering with the connections of certain peer-to-peer, or P2P, applications. After the FCC concluded this past summer that such conduct does not constitute reasonable network management, the existence and extent of the FCC's jurisdiction over broadband Internet access was challenged by Comcast in the D.C. Circuit Court of Appeals. The FCC can and must act to address the types of unreasonable discrimination in which ISPs, like Comcast, have engaged if it wants to ensure an open, competitive Internet and guarantee that broadband networks are "operated in a neutral manner," and the 1996 Telecommunications Act conveniently provides the requisite jurisdictional basis for such action. First, Title I of the 1996 Act confers an alternative basis for the FCC's statutory authority over broadband Internet providers--namely, its Title I "ancillary" jurisdiction over all wire and radio communication. Second, as Title I requires, the Commission's exercise of that jurisdiction is "reasonably ancillary" or sufficiently related, to advancing congressional goals and policies-specifically, Section 230 of the 1996 Act. Finally, and just as importantly, the Supreme Court has confirmed the FCC's ancillary jurisdiction over innovative technologies like broadband Internet throughout its long history addressing Title I.
FCC Jurisdiction over ISPS in Protocol-Specific Bandwidth Throttling,
Mich. Telecomm. & Tech. L. Rev.
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