Today, the FCC released a draft order that would reclassify broadband Internet access service (BIAS) as a Title II common carrier service. The Commission will vote on the Order at its April 25 meeting.

“After fifteen years of insisting the sky will fall without FCC rules, the Commission has produced a draft order that is longer than Crime and Punishment—and just as gloomy,” said Berin Szóka, President of TechFreedom. “Yet few of the order’s 800 paragraphs are about what really matters: will the Supreme Court ultimately uphold reclassification? Two legal issues have always loomed largest. First, is reclassifying America’s broadband networks as common carriers a ‘major’ question? The Order dedicates just twelve paragraphs to this issue—and does little more than summarize the Commission’s previous claims. The FCC makes a series of assumptions, any one of which could be rejected by the courts. These include that Title II reclassification is not a question of major economic and political significance, and that the Supreme Court (in its 2005 Brand X decision) resolved the matter. Just one paragraph tries to explain why, even if reclassification were a major question, Congress has already clearly authorized the Commission to decide that question.”

“The Commission says even less about the other looming legal issue: the nondelegation doctrine,” continued Szóka. “If Congress had intended the FCC to decide the question of broadband’s status, would the Constitution permit lawmakers to delegate such broad discretion to the FCC without saying more about how to make classification decisions? The Commission devotes a single footnote to answering TechFreedom’s concerns about nondelegation. A majority of the Supreme Court has clearly signaled that they will apply a stricter standard than the one the FCC comfortably invokes to dismiss our concerns.”

Today’s draft order is just another episode of the melodrama that started in 2009,” concluded Szóka. “What the Commission says matters only insofar as the agency will be held to the contents of the final order in litigation. Despite all the ink spilled today, in litigation, the Commission will have to say much, much more about its legal arguments. Today’s draft order offers only a sneak preview of the coming legal battle. Anyone who’s confident that the FCC will ultimately prevail just hasn’t been paying attention to the Supreme Court’s growing skepticism towards administrative agencies’ increasingly aggressive claims that they, rather than Congress, may properly decide the policy questions that matter most.”


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