As the Federal Communications Commission (FCC) gears up to reinstate net neutrality rules and reclassify broadband as a telecommunications service under Title II of the Communications Act, legal experts are divided on the outcome of this regulatory battle.
The Democratic-led FCC intends to subject internet service providers (ISPs) to common-carrier regulations by defining broadband as a telecommunications service. Industry trade groups representing ISPs are expected to challenge this move in court, arguing that the FCC lacks the authority to make this reclassification.
Previous federal appeals court decisions upheld the FCC’s authority in similar cases, some legal commentators now raise doubts. They point to the evolving approach of the Supreme Court regarding whether federal agencies can decide “major questions” without clear congressional instructions.
The core question revolves around whether the FCC has the power to classify broadband as a telecommunications service. This determination is crucial because Title II’s common-carrier framework only applies to telecommunications services, while the FCC currently treats broadband as an “information service” under Title I.
Two former Obama administration solicitors general, Donald Verrilli, Jr., and Ian Heath Gershengorn, contend that the FCC’s decision will not survive a Supreme Court challenge under the major questions doctrine. They argue that there is a strong likelihood of the Supreme Court ruling against the FCC, despite the agency’s plan to revert to Obama-era regulation.
Opinions on this matter vary. Some legal experts, like Pantelis Michalopoulos, who defended net neutrality rules during the Obama era, believe that the major questions doctrine is not as damning as Verrilli and Gershengorn suggest. They argue that the FCC has survived similar scrutiny before and that the doctrine doesn’t necessarily guarantee failure for a Title II reclassification.
The sources for this piece include an article in ArsTechnica.