Today, the Federal Communications Commission (FCC) voted to approve a rule to reinstate net neutrality regulations and to claim broad powers over broadband Internet access service (BIAS) by re-re-re-classifying it as a Title II common carrier service. TechFreedom filed both comments and reply comments explaining why the courts are likely to find Title II reclassification a “major question” that must be decided by Congress—and why only legislation can resolve the net neutrality debate.

“The courts won’t allow the FCC to regulate broadband services like railroads without clear authorization from Congress,” said Berin Szóka, President of TechFreedom. “The Supreme Court has been increasingly consistent in recent years: Congress can delegate power to agencies to decide major questions only by saying so clearly and specifically. When Congress wanted railroads to be regulated as common carriers in 1887, it said so clearly, as it did with telegraph and telephone networks in 1910. But the Court has already decided that the 1996 Telecommunications Act’s definition of ‘telecommunications service’ is ambiguous. The Court has also decided nine major questions cases since 2000; in eight, the government lost. The question involved here is no less major. It’s not net neutrality, where there is broad agreement. It’s whether the FCC may micromanage every aspect of broadband service. That’s what common carriage status means: despite ‘broad forbearance,’ the core provisions of Title II would give the FCC vast discretion to decide whether broadband practices, prices, and deployment are ‘just and reasonable.’”

It’s been seven years since the FCC repealed the 2015 net neutrality rules, yet the Internet is no less open, innovative, or free than ever,” continued Szóka. “Net neutrality has survived without FCC rules because consumers demand unrestricted access to the Internet, ISPs promise to meet that demand, and the Federal Trade Commission already ensures that consumers get what they’re promised. There’s no need for the FCC to do more than what it does now: require disclosure of any non-neutral practices. Reclassifying means stripping the FTC of its general jurisdiction to enforce consumer protection laws—yet another sign that this is a matter for Congress to decide.”

Many insist net neutrality regulations are essential; they should be leading the charge for legislation,” concluded Szóka. “Even if the FCC somehow prevails in court, the agency will simply flip-flop on Title II whenever Republicans retake the White House. The regulatory ping-pong will go on forever. And if the Court blocks reclassification, they’ll need legislation anyway. If the FCC really wanted to lead on this issue, it would focus on negotiating bipartisan consensus on what legislation might look like, just as the Internet Society attempted in 2019. Even in this broken Congress, a unanimous recommendation from the FCC could jumpstart legislation.”


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