Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Sixth Circuit to set aside the Federal Communications Commission’s new Open Internet Order. The Order treats broadband as a heavily regulated “telecommunications service” under Title II of the Communications Act of 1934. Throughout its history, though, broadband has nearly always been a lightly regulated “information service” under Title I. In recent years, the FCC has switched broadband’s regulatory status with each change of presidential administration. TechFreedom’s brief argues that this vacillation must end, because the FCC’s attempt to place broadband under Title II flunks the “major questions” test.

“The FCC is seeking to answer a major policy question—but it lacks clear authority to do so.” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Recently, the Supreme Court has repeatedly affirmed that Congress must address major policy questions, either by answering them itself or by clearly passing them to an agency. The FCC’s Order tackles a major question—it would, for instance, reduce broadband investment by many billions of dollars. Yet Congress has not clearly granted the FCC the authority to act. To cram broadband into Title II, in fact, the FCC has had to use its so-called forbearance power to all but rewrite the Communications Act.”

“The FCC must stop its flip-flopping,” Barthold continued. “Under Title I, broadband coverage and performance have been consistently improving. During the COVID-19 pandemic, it was the highly regulated European Internet, not the lightly regulated American one, that needed rationing. 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. Broadband is doing great under Title I—and there it should stay.”

Washington Legal Foundation joined TechFreedom’s brief. The lead case is In re: MCP No. 185, No. 24-7000 (6th 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.

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