The FCC's Internet Power Surge: The Constitutional and Statutory Limits on the FCC's Authority to Promulgate "Net Neutrality" Rules

By Gregory G. Garre
February 12, 2010
The Federal Communications Commission (FCC or Commission) has established authority over the regulation of virtually all television, radio, satellite, and cable services in America.  Recently, the FCC has proposed an expansion of its authority into a new arena—broadband Internet access service.  In October 2009, the Commission noticed its intent to adopt rules governing traffic over the Internet.  Proponents of the FCC’s so-called “net neutrality” rules maintain that they would allow Internet traffic to flow more freely, while opponents claim that federal regulation in this area could stifle the innovation and growth that has been the hallmark of the Internet since it became a household word less than two decades ago.  Whatever the proper resolution of that important policy debate, there is a critical threshold question that must be answered—whether Congress has authorized the FCC to regulate at all in this area.  And upon examination, the FCC’s broad new assertion of power over the Internet is unsound...