Though it’s tasked with regulating the information technologies of the future, the Federal Communications Commission remains stuck in the past. As broadband accelerates, 5G networks grow, and Starlink satellites proliferate, the FCC has reintroduced “net neutrality” rules that would subject broadband to onerous common-carrier regulation. Led by Ajit Pai, the Trump FCC cut short the agency’s previous fling with net neutrality in 2018. Democratic politicians and activists predicted catastrophe, but the Internet continued to work just fine. In fact, download speeds tripled, prices fell, and competition grew.
In a statement endorsing the proposed new net neutrality regime, FCC chairwoman Jessica Rosenworcel lamented that “no expert agency [is] ensuring that the internet is fast, open, and fair.” “We have work to do,” she intoned. You’d think, reading Rosenworcel’s claims, that the experts at the FCC are going to go out and lay fiber themselves. The plan is not simply to ban companies from barring or slowing access to content for ideological or avaricious reasons but to impose utility-style regulation.
One of the many peculiarities of Rosenworcel’s statement is its assertion that the previous administration’s repeal of the order imposing net neutrality rules—the fawningly named Open Internet Order—put the agency on “the wrong side of the American public.” After all, don’t “80 percent of the people in this country support net neutrality”? Well, yes, of course they do. When Pai was in office, Democrats terrorized Americans into believing that without heavy-handed government intervention, the Internet would get rationed out “one word at a time.” During the Covid-19 pandemic, though, it was the highly regulated European Internet, not the lightly regulated American one, that needed rationing. But at this point, perception is reality: all Rosenworcel is really saying is that the Democrats’ scare tactics worked.
The policy marks the FCC’s fourth about-face on whether broadband is a Title I “information service” (which means light-touch regulation), or a Title II “telecommunications service” (hello, common-carrier rules), under the Telecommunications Act of 1996. In recent years, a flip has come with each change of administration. The Biden FCC is striving to undo the Trump FCC’s undoing of what the Obama FCC did.
It’s revealing that, in this latest round, Rosenworcel has ditched the hysterical rhetoric about how, without invasive government oversight, the Internet will implode. Recent history having made such claims look ridiculous, Rosenworcel wants to switch the subject. Suddenly, she appears worried about national security, insisting that the agency is not doing “enough to keep our adversaries at bay.”
This concern is a non sequitur. Both the FCC and other federal agencies (ones more focused on national security) are already rooting out, removing, and banning equipment from Chinese telecom firms. Making broadband providers more like water or power companies will not help matters. Pai was right when he said that net neutrality is a solution in search of a problem.
The revival of the Title II debate at the FCC is policymaking as backward-looking political grudge match, bureaucratic make-work and agency self-aggrandizement, and state control as an end in itself. It’s broken government in action.
But not every part of the federal government is so dysfunctional. Recently, the Supreme Court has been sharpening its major-questions rule. In a system of government of, by, and for the people, this rule should pass for common sense. The major-questions rule assumes that Congress, the nation’s highest lawmaking body, does not lightly relinquish its authority to make law.
In 2017, then-judge Brett Kavanaugh dissented from a decision of the United States Court of Appeals for the D.C. Circuit upholding the Open Internet Order. “In a series of important cases over the last 25 years,” Kavanaugh observed, “the Supreme Court has required clear congressional authorization for major agency rules of this kind.” In Kavanaugh’s view, the FCC lacked clear congressional authorization for the major rules—common-carrier regulation of broadband—of the Open Internet Order.
Though that order was upheld by the D.C. Circuit six years ago (only to be repealed, as already noted, by the Trump FCC), the Supreme Court has since made its position on major questions far clearer. In West Virginia v. EPA (2022), the Court announced the “arrival of the ‘major questions doctrine.’” That, at any rate, is how the dissent put it. More accurately, the Court used the “major-questions” label for the first time, in a decision that streamlined various rulings deploying the underlying principle. The major-questions rule stands on a presumption, the Court said, quoting now-Justice Kavanaugh’s 2017 dissent, “that Congress intends to make major policy decisions itself, not leave those decisions to agencies.”
That case put to rest the Obama administration’s attempt to use an obscure provision of the Clean Air Act to shut down coal-fired power plants. Since then, the Court has invoked the major-questions rule while striking down the Centers for Disease Control’s push to restrict evictions during the Covid-19 pandemic (Alabama Association of Realtors v. HHS), the Occupational Safety and Health Administration’s effort to force the American workforce to get Covid-19 vaccines (or comply with a strict test-and-mask regiment) (NFIB v. OSHA), and the Department of Education’s attempt to implement a sweeping “emergency” (yet post-pandemic) federal student-loan forgiveness program (Biden v. Nebraska).
It is in this light that we should understand the government’s latest drive to take control of the Internet. Does the FCC’s net neutrality plan tackle a major policy question? Yes. Has Congress clearly granted the FCC the authority to act? No.
What makes a question a “major” one? The best distillation of the case law appears in a concurrence issued by Justice Neil Gorsuch in West Virginia v. EPA. “First,” Gorsuch found, “the doctrine applies when an agency claims the power to resolve a matter of great political significance, or end an earnest and profound [national] debate.” Government control of the means of communication—and, in particular, a medium as pervasive and powerful as the modern Internet—is self-evidently a matter of deep political importance. Nor could anyone doubt that the debate over Internet regulation has been “profound.” The Trump FCC officials who repealed the Open Internet Order were accused of wanting “digital serfdom.” Demonstrators denounced them in street protests. A bomb threat interrupted an FCC vote on the repeal.
Gorsuch: “Second, this Court has said that an agency must point to clear congressional authorization when it seeks to regulate a significant portion of the American economy.” Telecom firms have invested more than $2 trillion in Internet infrastructure since 1996. They invested $86 billion in 2021 alone. Even a mere dent in that investment, as a result of new government regulation, would qualify as the sort of “economic significance” that triggers the major-questions rule.
In any case, the rule is not only about an agency’s action; it is also about the scope of the authority that the agency asserts. In Alabama Association of Realtors, the CDC read the pertinent statute in a way that would permit it not only to block evictions but also to mandate free grocery delivery. That, the Court said, created a major-questions issue. Though the FCC wants to impose only some Title II common-carrier rules, it reads the Telecommunications Act in a way that would permit it to impose all Title II common-carrier rules, right down to price controls. Suffice it to say that the economic significance of letting the government set broadband prices would be staggering.
Next, consider the FCC’s lack of authority to proceed. The Telecommunications Act of 1996 is a deregulatory statute. In that spirit, it left the then-nascent Internet alone. “It is the policy of the United States,” it declares, “to preserve the vibrant and competitive free market that presently exists for the Internet . . . , unfettered by Federal or State regulation.” The FCC adhered to this statutory directive until 2015, when it reversed course and issued the Open Internet Order. Even then, however, the agency acknowledged that the Telecommunications Act is, at most, ambiguous on the question of broadband’s regulatory status (Title I or Title II). That “admi[ssion],” Kavanaugh wrote in 2017, should have been “the end of the game for the net neutrality rule.” Statutory ambiguity is the opposite of clear congressional permission to resolve a major question.
What’s more, the Supreme Court has already concluded that, when it comes to the Internet, the Title I/Title II distinction is ambiguous. The issue in NCTA v. Brand X Internet Services (2005) was whether the FCC had properly classified cable-modem Internet as an information service under Title I. Brand X found the FCC’s reading of the statute permissible. It found, in other words, that broadband is not clearly a telecommunications service under Title II.
The upshot is that the FCC lacks clear authority to impose its new net neutrality plan, which therefore flunks the major-questions test.
The FCC is rushing to finalize its new net neutrality plan by next August. If Republicans win control of Congress and the White House in the 2024 election, they could use the Congressional Review Act to repeal a new Title II order issued less than 60 legislative days before they take power. Even if the GOP takes only the White House, that would flip the majority at the FCC, which would then seek to overturn a new Title II order through yet another rulemaking round. And no matter what, a new Title II order will get challenged in court, where it will face, among other obstacles, the major-questions rule.
“Make no mistake,” Republican commissioner Brendan Carr says, “any FCC decision to impose Title II on the Internet will be overturned by the courts, by Congress, or by a future FCC.” A bold claim—but by no means an incorrect one.
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