Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Eighth Circuit to vacate an FCC rule that attempts, by grasping at a few hundred words buried in the thousand-page Infrastructure Investment and Jobs Act, to impose sweeping new regulations on the Internet.

“The FCC took a simple task and made it needlessly complicated,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Congress instructed the agency to adopt rules against intentional discrimination that hinders access to broadband. Instead, the FCC wants to impose liability even when a disparity in broadband access between two groups is entirely unintended. What’s more, the FCC wants to impose this hair-trigger liability on a vast array of entities (down to landlords and local governments) and a vast array of activities (down to the quality of entities’ customer service).”

“The FCC’s rule flunks the major questions test,” Barthold continued. “As the Supreme Court has made increasingly clear, agencies may not, absent clear permission from Congress, claim the power to resolve major questions of policy. The FCC’s rule obviously tackles a major question: the economically significant and politically fraught topic of whether to regulate the Internet like a utility. Yet the FCC is proceeding without clear statutory authority. Congress did not hide, on pages 816 and 817 of the Infrastructure Act, a few lines quietly permitting the FCC to write what amounts to a whole new Communications Act for broadband.”

“This is no way to govern a country,” Barthold concluded. “Agencies—especially unaccountable ‘independent’ ones, such as the FCC—need to stop construing statutes aggressively, disregarding Supreme Court precedent they find inconvenient, and otherwise seeking to expand their power at Congress’s expense.” 

The lead case is Minnesota Telecom Alliance v. FCC, No. 1179 (8th Cir.).


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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.