Democratic Legal Experts Urge FCC to Avoid Net Neutrality Fight

By Andy Regitsky

It is no secret that Democrats are chomping at the bits to re-institute the Obama-era Net Neutrality rules.  Under that administration, the FCC classified broadband Internet access service as a telecommunications service regulated under Title II of the Telecommunications Act after years of light Title I regulation.  While this ensured that the ISPs could not discriminate against particular Internet traffic it also gave the Commission authority over ISP rates, terms and conditions.  Moreover, critics claimed that such imposing regulations stifled investment and innovation.

Net Neutrality was eliminated during the Trump administration, when the FCC decided to lightly regulate broadband Internet access as a Title I information service.  The agency had its decision affirmed by the DC Circuit Court of appeals, which found the FCC classification reasonable.

Now, with Anna Gomez confirmed as the fifth FCC commissioner and third Democrat, the Commission and many consumer advocates are eager to begin again on a new Net Neutrality proceeding.  On Tuesday, FCC Chairwoman Jessica Rosenworcel speaking to the National Press Club explained why she believes Net Neutrality is needed, and the full Commission is expected to vote on and approve a new Net Neutrality rulemaking at its October 19, 2023, meeting.

But all is not smooth sailing.  Surprisingly, the FCC is getting advice from surprising sources claiming a new FCC push for Net Neutrality is a waste of time and resources.  In a September 20, 2023, White Paper called “Title II Net Neutrality” Broadband Rules Would Breach Major Questions Doctrine” by Donald B. Verrilli, Jr. and Ian Heath Gershengorn both former Obama Administration Solicitors General identify what they say are insurmountable legal barriers to Title II regulation of the Internet.

The Solicitors General make this argument even though both are strong believers of an open Internet and believe that ISPs should not be permitted to block, throttle or prioritize Internet traffic.  They simply do not believe that the Supreme Court would permit a Title II classification for broadband Internet traffic.  They state:

Consider first the law.  The Supreme Court is likely to invalidate any attempt by the Commission to impose Title II regulation on broadband internet access service.  As the last two Terms have made clear, the major questions doctrine is here to stay, and that doctrine resolves this case.  The Supreme Court will surely consider the question whether to classify broadband as a Title II telecommunications service subject to common carrier regulation to be a “major question”—that is, one involving a matter of major economic and political significance. As then-Judge Kavanaugh noted, that proposition is “indisputable,” and “any other conclusion would fail the straight-face test.”  And, the Court has made crystal clear that when a federal agency seeks to address a major question, the agency must have “clear congressional authorization” for the regulations it imposes. The statutory text on which the Commission proposes to hang its hat lacks the clear statement of authority that the Supreme Court demands. Nothing in Title II of the Communications Act itself or in any other statute gives the Commission the clear and unambiguous authority to classify broadband as a Title II telecommunications service subject to common carrier regulation, and the Commission cannot reasonably conclude otherwise. (White Paper, at p. 3).

As the Solicitors General note the current conservative Supreme Court has made it clear that it will use the major questions doctrine to limit executive agency power whenever it can.  Thus, the experts state:

Given that legal reality, for the Commission to move forward unilaterally to impose Title II regulations on broadband would be a serious mistake. The administrative proceedings to develop the new regime will require a massive commitment of resources from the government and private parties alike, and the ensuing court challenges will do the same.  Moving ahead in this way thus would distract the Commission from its other priorities—ones fully within the scope of its congressional authority. (Id., at p. 4).

 As we noted, both experts support the Net Neutrality rules but believe that they should result from Congressional action (not likely) or through section 706 of the Act which applies to Commission control over advanced services.

The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet—is reasonable and supported by substantial evidence. (Id., note 73).

I have worked with Don Verrilli before, and he is simply brilliant.  The FCC would be well advised to take his advice seriously before plunging the industry into another needless years-long fight over Net Neutrality.