The Federal Communications Commission has ancillary authority under section 4(i) of the Communications Act of 1934, which authorizes the Commission to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions." The Commission may exercise this “ancillary” authority only if it demonstrates that its action is “reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities.”
A number of provisions in the 1934 Communications Act explicitly give the Commission authority to issue rules or orders to achieve some goal. For example, section 254 gives the Commission the responsibility to ensure that consumers in all regions of the nation have access to telecommunications services. The U.S. Supreme Court has decided that in some circumstances the Commission can take an action even if it the statute does not explicitly tell it to do so, as long as the action advances its explicit responsibilities. This limited authority is called the Commission’s “ancillary authority.”
Until recently, it was widely believed that the Commission’s ancillary authority allowed it to pursue basic, light-touch, broadband policies, including protecting consumers and promoting competition by ensuring transparency, protecting consumers’ privacy, ensuring that persons with disabilities have access to broadband, protecting against cyber-attacks, and preserving the free and open Internet. But in April 2010, the U.S. Court of Appeals for the D.C. Circuit ruled in Comcast v. FCC that the Commission’s ancillary authority is more limited than previously thought. As a result, the Commission is exploring other legal frameworks that would support its limited but vital role in broadband policy.
- 47 U.S.C. §154(i).
- American Library Ass’n v. Federal Commns. Comm'n, 406 F.3d 689, 692 (D.C. Cir. 2005) (full-text).