The IT Law Wiki

This wiki's URL has been migrated to the primary domain.Read more here


The IT Law Wiki


Comcast v. Federal Comms. Comm'n, 600 F.3d 642 (D.C. Cir. 2010) (full-text).

Factual Background[]

In 2007, through various experiments by the media, most notably the Associated Press, it became clear that Comcast was intermittently blocking the use of an application called BitTorrent and, possibly, other peer-to-peer (P2P) file-sharing programs on its network. Comcast eventually admitted to the practice and agreed to cease blocking the use of the P2P applications on its network. However, Comcast maintains that its actions were reasonable network management and not in violation of the Federal Communications Commission’s (FCC) policy.

In response to a petition from Free Press for a declaratory ruling that Comcast’s blocking of P2P applications was not “reasonable network management,” the FCC conducted an investigation into Comcast’s network management practices. The FCC determined that Comcast had violated the agency’s Internet Policy Statement when it blocked certain applications on its network and that the practice at issue in this case was not “reasonable network management.”[1] The FCC declined to fine Comcast, because its Internet Policy Statement had never previously been the basis for enforcement forfeitures. Comcast appealed this decision to the U.S. Court of Appeals for the D.C. Circuit, as did other public interest groups.

Appellate Court Proceedings[]

On April 6, 2010, the D.C. Circuit vacated the FCC’s order against Comcast because the FCC had failed to tie its assertion of ancillary authority to any "statutorily mandated responsibility."[2] After dispensing with the FCC’s preliminary arguments against the court’s jurisdiction, the panel applied the test for ancillary jurisdiction it had announced in American Library Ass'n v. FCC,[3] and found the FCC’s argument insufficient to satisfy the standards.

The U.S. Supreme Court recognizes that the FCC has so-called "ancillary authority" to regulate services that it has not been granted express authority to regulate.[4] The FCC did not claim that it had express authority to regulate cable Internet service. Rather, the agency argued that regulation of Internet services was "reasonably ancillary to the . . . effective performance of its statutorily mandated responsibilities."[5] The FCC relied primarily upon Section 230(b) of the Communications Act, which states that "it is the policy of the United States . . . to promote the continued development of the Internet and other interactive computer services [and] to encourage the development of technologies which maximize user control over what information is received by individuals families and schools who use the Internet."[6] The FCC argued that this statement of policy, along with the general rulemaking authority in Title I, was sufficient to assert ancillary jurisdiction over cable Internet network management.

In American Library Ass'n v. FCC, the D.C. Circuit recently held that the FCC may assert its ancillary authority when two conditions are met: (1) the Commission’s general jurisdiction grant under Title I covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its statutorily-mandated responsibilities.[7] The court agreed that condition (1) had been met. Cable Internet services falls within the general jurisdiction granted to the Commission under Title I. The court held, however, that the FCC had failed to satisfy condition (2) because statements of policy could not be considered to be statutorily-mandated responsibilities under the Communications Act.[8]

The court detailed each case heard by the Supreme Court and by the D.C. Circuit where ancillary jurisdiction was the basis for the FCC’s authority to act in the case. In each case, the court found that where the FCC had ancillary authority to exercise jurisdiction, the FCC’s argument for jurisdiction related to a specific grant of authority to regulate in a related area and did not rely solely on a policy statement, as the Commission had done here. The court expressed concern that if it had adopted the FCC’s argument and allowed ancillary authority to rest on statements of policy in the Communications Act, the FCC’s authority to regulate would have been nearly boundless and the agency could find reason to regulate in many new areas where Congress had not granted specific authority to do so.

The court also addressed the other statutory provisions upon which the FCC claimed to rely for jurisdiction.[9] Some of these statutory provisions, such as Section 706 of the Communications Act,[10] arguably might grant the FCC specific authority to regulate in an area reasonably related to the regulation of cable Internet services. In each case, however, the court found the FCC had failed in some way to properly advance the argument for jurisdiction on the basis of these other statutory provisions. Therefore, the court found that it could not hold that the FCC had ancillary authority to regulate cable Internet services based upon any of these specific grants of regulatory authority.


  1. See In the Matters of Formal Complaint of Free Press and Public Knowledge Against Comcast, 23 FCC Rcd 13028 (2008).
  2. 2010 U.S. App. LEXIS 7039 (D.C. Cir. Apr. 6, 2010). The court did not address the question of whether the FCC acted appropriately in attempting to enforce the policy statement through an adjudication because the FCC did not clear its jurisdictional hurdle.
  3. 403 F.3d 689, 691-92 (D.C. Cir. 2005).
  4. See United States v. Southwestern Cable Co., 392 U.S. 157 (1968); United States v. Midwest Video Corp., 406 U.S. 649 (1972), FCC v. Midwest Video Corp., 440 U.S. 589 (1979).
  5. 2010 U.S. App. LEXIS 7039, at *2.
  6. Id. at *17.
  7. Id. at *7.
  8. Id. at *29-*30.
  9. Id. at *30–*36.
  10. Section 706 of the Communications Act states that "the Commission . . . shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans." The court agreed that this could be a direct mandate to regulate. The Commission, however, is legally bound by its previous interpretation of Section 706. The Commission had previously found that Section 706 did not constitute an independent grant of authority. In the court’s opinion, the Commission could not rely on Section 706 as an independent grant of statutory authority in this case, because it had previously held that Section 706 was not an independent grant of authority and it is bound by its own interpretation of the section. Id. at *30–*31. The Commission does have the option of conducting a rulemaking to reinterpret Section 706 as an independent grant of regulatory authority. The Commission would have to complete that rulemaking before asserting Section 706 as a source of ancillary authority. See FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1811 (2009).