The Federal Communications Commission's authority to regulate the Internet has been in question lately, and not just because of the newly published net neutrality rules. Comcast is suing the FCC, arguing that it has no authority to sanction the company for its network management practices.
According to Ars Technica, Comcast argues:
[T]he agency's rhetoric regarding the merits of the [network management] practices cannot solve the lack of any pre-existing binding legal norm governing those practices or the related legal questions...
The FCC, on the other hand, bases its authority on jurisdiction ancillary to that granted in the Telecommunications Act of 1996. The act specifically mentions the Internet only twice, in sections 157 and 230, and it does not expressly address broadband networks. However, as writer Matthew Lasar points out, courts have "greenlighted" ancillary authority. In fact, he says, people on both sides of the argument agree that ancillary authority exists. They just don't agree that it should be used in this instance.
If the court in the Comcast case decides the FCC does not have authority to promulgate its net neutrality rules, then the decision will be left to Congress, Lasar says. And since members of Congress have already come down on both sides of the issue as well, this debate is far from over.