Yesterday, TechFreedom filed reply comments in response to the Federal Communications Commission’s (FCC) Notice of Proposed Rulemaking (NPRM), which proposes to claim broad powers over broadband Internet access service (BIAS) by classifying it as a Title II common carrier service. We explain why commenters in this proceeding have failed to demonstrate that Title II reclassification is not a major question and that Congress clearly empowered the FCC to classify broadband as a Title II service. 

“Title II reclassification is undoubtedly a major question,” said Berin Szóka, President of TechFreedom. “The Supreme Court has been increasingly consistent in recent years: Congress can delegate major questions for decision by an agency only by saying so clearly. The Supreme Court has decided nine such cases since 2000; in eight, the government lost. No one who has watched the Court closely can seriously expect the FCC to prevail in the inevitable litigation over Title II classification. At minimum, the Commission should refrain from any action until the resolution of the Loper Bright case, which may limit or even end the application of Chevron deference, even when major questions are not involved.”

“No clear statement authorizes the FCC to impose Title II on BIAS,” Szóka continued. “But the Supreme Court has already decided, in Brand X, that the 1996 Telecommunications Act was ambiguous in the complex distinction it drew between heavily regulated telecommunications services and lightly regulated information services. This ambiguity is the opposite of the clear statement required to decide major questions. While the FCC clearly has the power to classify services in general, there are no arguments that take it from there (clear power to classify) to where it needs to go (clear power to take the major step of classifying BIAS as a Title II service).”

“The need for Title II reclassification hasn’t been shown, either,” Szóka concluded. “Supporters of Title II make a wide variety of arguments that reclassification is necessary to serve the public interest. None hold water. Some insist that Title II regulation is vital to protect public safety—specifically to prevent the blocking or throttling of messages sent by public safety authorities over BIAS. But there’s no evidence of such blocking in the United States—at least, not by BIAS providers. Moreover, if broadband providers ever did engage in such blocking, if they clearly disclosed it, their service wouldn’t qualify as a BIAS anyway. So such non-neutrality would end up be policed by consumer protection law anyway—the very thing the FCC claims is inadequate. Meanwhile, Title II supporters readily acknowledge that Title II would allow the FCC to impose price controls for broadband and advocate for increasing the President’s power to take control of the Internet—the very opposite of a ‘free and open Internet.’”


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