WASHINGTON D.C. — Today, the Supreme Court voted not to grant certiorari (review) of legal challenges to the FCC’s 2015 Open Internet Order. TechFreedom had played a key role in that litigation, joining several leading VoIP pioneers in challenging the FCC’s sweeping claims of power to regulate the Internet (rather than the net neutrality rules themselves). Congress, if it wishes to make such a “major” decision, must clearly delegate authority to regulators, which it has not done here.

Four votes would have been required for the Court to take the case. Justice Kavanaugh embraced our arguments in a powerful dissent from the D.C. Circuit’s decision last year not to rehear a panel decision upholding the 2015 Order, but because of writing that opinion, he recused himself from this decision. Chief Justice Roberts also recused himself, apparently because of prior stock holdings in a cable company. Three Republican-appointees voted to grant petitions for cert, vacate the decision, and remand to the D.C. Circuit for rehearing.

“We always knew it was unlikely that the Court would take this case now that the FCC has reversed its sweeping claims of power over the Internet, but unless Congress legislates, the Court will eventually have to confront the question we alone have raised: should courts defer to such claims?” said Berin Szóka, President of TechFreedom. “The Court upheld the FCC’s 2002 decision not to impose heavy-handed common carriage regulation, including price controls, on broadband, applying the deferential standard of the landmark 1984 Chevron decision. The D.C. Circuit upheld the FCC’s 2015 decision to impose such regulation under the same level of deference. While the lower courts have not clearly distinguished between major and minor questions, the Supreme Court has done so in a series of cases.”

TechFreedom recently filed an amicus brief before the D.C. Circuit making the same arguments, that the FCC’s broad claims of power under both Title II and Section 706 of the 1996 Telecommunications Act raise “major questions,” thus do not qualify for Chevron deference, and must be assessed on their own merits as interpretations of the statute. By contrast, the FCC’s 2017 decision to disclaim such broad powers should, just as in 2002, qualify for Chevron deference, because it does not raise a major question.

“What the FCC’s statute actually means may be somewhat moot now that the FCC has returned to its original understanding of both Title II and Section 706, but absent legislation, the ping-pong match over the FCC’s authority will continue,” continued Szóka. “The next Democratic FCC Chair will undoubtedly reclaim broad power over the Internet, and the same questions of deference we’ve raised will have to be decided by the Supreme Court at that time. Given that all five Republican-appointed Justices have urged a significant re-thinking of Chevron deference, that it was actually Justice Breyer who first argued that Chevron ought not apply to questions of ‘major significance,’ and that other Democratic-appointed Justices have sometimes taken that view, we feel confident that the Court will ultimately decide that Chevron does not apply here.”

“The debate over Chevron deference may seem dull, but it underlies every other debate about tech regulation—and its resolution will have enormous consequences,” concluded Szóka. “Professor von Hayek put it best when he said that ‘it is in the technical discussion concerning administrative law that the fate of our liberty is being decided.’ So long as regulators can stand behind the shield of Chevron, the Internet will never be safe. That’s why it’s essential that Congress pass legislation that provides a clear framework for protecting net neutrality without the FCC needing to invent broad authority.”

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We can be reached for comment at media@techfreedom.org. See our other work on net neutrality, including:

  • Our petition for certiorari and other major filings in this case
  • Our amicus brief in pending litigation over the FCC’s 2017 Restoring Internet Freedom Order
  • Tech Policy Podcast #172: The Future of Internet Regulation (w/ FCC Chairman Ajit Pai)
  • Our statement on the need for a legislative compromise over net neutrality
  • Our statement on the D.C. Circuit’s denial of rehearing.
  • Our statement on our appeal over the DC Circuit’s decision upholding Title II reclassification
  • A summary of our opening brief challenging the FCC’s order

About TechFreedom:

TechFreedom is a non-profit, non-partisan 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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