Today, TechFreedom filed an amicus curiae brief opposing legal challenges to the Restoring Internet Freedom Order approved by the FCC late last year. Petitioners have asked the D.C. Circuit to reinstate the broad claims of power to regulate Internet services made by the FCC in 2015 and 2010. TechFreedom has consistently opposed these claims, representing Voice over Internet Protocol (VoIP) pioneers as Intervenors in challenging the 2015 rules on the constitutional grounds cited by then-Judge Kavanaugh and Judge Browns in their 2017 dissents. Instead, TechFreedom has urged Congress to enact legislation that clarifies the limits on the FCC’s power over the Internet while also providing clear authority to address net neutrality concerns.

The D.C. Circuit didn’t ‘bless’ the FCC’s 2010 and 2015 claims of authority, as many have claimed; the court simply deferred to the FCC under Chevron; and will now uphold the new FCC’s reversal of those claims for the same reasons,” said Berin Szóka, President of TechFreedom. “If the court stops there, we already know what will happen if Congress fails to act: the next Democratic FCC will reclaim broad power under Title II and Section 706, states will keep trying to regulate inherently interstate services, and we’ll be right back to where we were in 2016 — with the Supreme Court being asked to decide what Congress really intended. That’s why we’re asking the court of appeals to decide that question now.”

Both Democratic and Republican appointed judges have recognized that administrative agencies ought not be given free rein to decide ‘major questions’ of economic and political importance,” continued Szóka. “The doctrine originates with Justice Breyer, who wrote an article in 1986, before joining the Court, explained why courts should defer to agencies only on ‘ordinary’ questions of statutory interpretation. As one Democratic appellate judge recently put it, rejecting the International Trade Commission’s claims of authority to regulate digital articles, ‘If Congress intended for the Commission to regulate one of the most important aspects of modern-day life, Congress surely would have said so expressly.’ If giving the FCC vast discretion to regulate the Internet isn’t a ‘major question,’ it’s hard to see what ever could be.”

The FCC’s 2010 and 2015 readings of the statute broke with over four decades of FCC precedent and clear Congressional intent,” explained Szóka. “The Wheeler FCC was trying to roll the clock back to before 1966, when the FCC started protecting information services from the regulatory regime designed for the Ma Bell monopoly telephone network. The 1996 Act was clear in its intent to ‘reduce regulation’ and keep the Internet ‘unfettered by Federal or State regulation.’ The sooner the courts make that clear, the better. And if they won’t, Congress should. Sadly, this litigation is being used as a distraction from legislation by those who made a cottage industry out of stoking outrage over net neutrality, and who would rather fight forever.

* * *

Read the brief here. For more information on the issue, take a look at some of our recent work:

  • All our briefs in in the litigation over the FCC’s authority
  • Our working draft legal memorandum analyzing the constitutionality of state net neutrality laws
  • Our statement explaining why Rep. Mike Coffman’s net neutrality legislation won’t resolve the debate
  • Our statement on our letter about why CRA won’t restore Title II
  • Our statement on the 2017 Blackburn bill: “Republicans Propose Net Neutrality Again. Will Democrats Engage?”
  • Only Congress, not the FCC can fix net neutrality, Szóka’s op-ed in WIRED
  • FCC Commissioner Brendan Carr interview on Tech Policy Podcast
  • FCC Chairman Ajit Pai interview on the Tech Policy Podcast
  • Pai Brings Unprecedented Transparency to Open Internet Proceeding, Graham Owens’ blog post
  • How net-neutrality advocates would let Trump control the Internet, Szóka’s op-ed in the Washington Post
  • The Feds lost on net neutrality, but won control of the Internet, Szóka’s op-ed in WIRED