by Daniel A. Lyons
Free State Foundation
December 19, 2013
Legal arguments over net neutrality show that the Commission’s recent reliance on Title I is both quantitatively and qualitatively unmoored from its historical origins. The Commission has invoked its ancillary authority roughly as often in the past six years as it did in the preceding seventy-three years combined. And it has increasingly done so not to perfect its statutory obligations over twentieth century broadcasting, cable, and telephone networks, but to create new obligations on twenty-first century IP networks. In an apparent attempt to remain relevant in light of technological change, the Commission seeks to transform itself from an agency that carries out a congressional mandate to one that creates common-law-like regulation of the Internet. But the Commission’s ancillary authority cannot support such lofty aspirations. The statute, prior case law, and basic rule of law principles require that any claimed authority be subject to principled constraints.

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