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FCC Asserts ISP Regulatory Authority

FCC lawyers have told the Government Accountability Office they believe the commission has the authority to regulate the supply chain practices of wireline and wireless telcos and, “in specific circumstances,” ISPs. But, they added, express permission from Congress would take away any legal doubt.

This is according to GAO testimony for a cybersecurity hearing May 21 in the House Communications Subcommittee that focused on supply chain security, covering the increasing reliance on equipment— routers, switchers—from outside the U.S.

Mark Goldstein, director of physical infrastructure issues at GAO and a familiar witness at Hill hearings on communications, offered testimony about what attorneys in the FCC general counsel’s office have said about using authority under the Communications Act. “[The] FCC could regulate network providers’ supply chain practices to assure that the public interest, convenience, or necessity are served if circumstances warranted,” Goldstein said.

But pointing out that the FCC has not attempted to do so, its reliance on that authority has not yet been tested in court. “According to FCC officials,” said Goldstein, “legislative changes to the Communications Act to provide express recognition of the agency’s authority to address such threats would reduce the risk of such challenges and may facilitate adoption of supply chain security regulation.”

Mirroring its defense of network neutrality regulations currently being challenged in court, the FCC told GAO that it may regulate “otherwise unregulated” providers of information services under Title I, “if doing so is reasonably ancillary to the effective performance of the Commission’s responsibilities set out in other titles of the Communications Act.” It added that, to the extent that an ISP holds an FCC license (as cable operators do), “the FCC could have direct regulatory authority over that provider.”