Federal Jurisdiction Over Internet and Broadband: A Commentary on Technology and Content Regulation

22 Pages Posted: 31 Mar 2013

Date Written: March 22, 2013

Abstract

Ever since the growth of federal administrative agencies during the New Deal, these institutions’ powers and jurisdiction have been defined mainly by their enabling act. With the development of a host of new technologies during the last 50 years, however, agencies increasingly have found themselves trapped between a lack of clear statutory mandates and Congress’ refusal to supply one by way of amendment.

This situation has been particularly troublesome in the media-telecommunications area. It began with the development of cable television, which fell into neither of the Federal Communications Commission’s two major regulatory powers: common carriage and broadcasting. Because of an increasing fear that cable would destroy the advertising economy of broadcasting, the FCC convinced the Supreme Court to imply “reasonably ancillary powers” from the agency’s other powers. Though the basis for this judicial acknowledgement of new jurisdiction was never clear, it basically filled the regulatory hiatus from the late 1960s to the early 1980s, when Congress eventually passed new legislation.

Though ancillary jurisdiction today largely is a study in legal history, it may inadvertently have provided a basis for FCC power over Internet, broadband, and other forms of cybermedia. Though only one Supreme Court decision and a few lower court cases have invoked it, the almost forgotten notion of ancillary jurisdiction yet may have viability today.

Suggested Citation

Botein, Michael H., Federal Jurisdiction Over Internet and Broadband: A Commentary on Technology and Content Regulation (March 22, 2013). NYLS Legal Studies Research Paper No. 12 /13 #66, Available at SSRN: https://ssrn.com/abstract=2241621 or http://dx.doi.org/10.2139/ssrn.2241621

Michael H. Botein (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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