Sunday, October 02, 2016

Ancillary Jurisdiction

The Communications Act of 1934 gives the Federal Communications Commission jurisdiction over interstate wireline and radio communications. For example, Title II of the Act gives the FCC jurisdiction over telecommunications services. Title III gives the FCC jurisdiction over wireless services.

But communications evolve, and by-and-by the FCC confronts a question not anticipated by the Communications Act. Nascent innovations storm the market and present policy issues prior to Congressional action. The classic example of this is the introduction of CableTV, placing a broadcast signal on a cable and bringing it over the mountain to a community that could not otherwise get reception. There was no Cable Act giving the Commission authority to act. Nevertheless, the FCC promulgated regulations which addressed the geographic footprints of cable TV networks. The Supreme Court upheld the FCC's exercise of jurisdiction, finding that it was reasonably ancillary to the agency's jurisdiction over broadcast TV.

The reach of the Commission's ancillary jurisdiction is not unbounded. While courts have recognized that the Communications Act grants the FCC broad authority, the Commission cannot use ancillary authority to justify anything. According to the courts,
"The Commission . . . may exercise ancillary jurisdiction only when two conditions are satisfied:
(1) the Commission's general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and 

(2) the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities."
It has to be interstate communications and it has to be ancillary to something (ancillary to a mere policy statement is insufficient). The FCC exercising jurisdiction over cable TV as ancillary to its Broadcast TV authority - sure, that is sound. But the courts, expressing anxiety that the FCC has no more authority than that which Congress grants it, gets jittering on the boundary of clearly articulated expressions of authority. The further astray the FCC acts from expressed statutory authority, the more anxiety is expressed by the courts. Where it is clear that the FCC is filling in gaps not anticipated by Congress, and which fulfill its mandate for promoting interstate communications, the Courts have tended towards affirming that authority. Where the FCC strains to tie its actions to expressed authority, however, the courts have stated that ancillary jurisdiction is not "unbounded."

Ancillary Jurisdiction
No Ancillary Jurisdiction
  • CableTV: regulation of geographic footprint of cable TV service ancillary to jurisdiction over broadcast TV
  • CableTV: cable TV requirement of creation of original programming ancillary to jurisdiction over broadcast TV
  • Enhanced Service Providers (Internet): Computer Inquiries safeguards ancillary to jurisdiction over telecom service
  • Universal Service: creation of universal service fund ancillary to title II authority to set reasonable interstate telephone rates
  • CableTV: regulations that required cable systems to make certain channels available for public use not ancillary to broadcast TV authority
  • Broadcast Flag: jurisdiction over broadcast flag to protect copyright is post-transmission and not ancillary to FCC authority
  • Broadband Internet Access Service: jurisdiction over BIAS cannot be ancillary to a policy statement

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