Net Neutrality Rules Face ‘Major Questions’ Buzzsaw at High Court

The Federal Communications Commission appears poised to consider once again how broadband internet access service should be regulated. The goal of ensuring “net neutrality,” so that all consumers can enjoy free and unimpeded access to lawful internet content of their choosing, is laudable. The key question, however, is who gets to decide how to translate that goal into law.

As it has before, the FCC wants to take that responsibility for itself, treating broadband as though it were a traditional common carrier service under Title II of the Communications Act and subjecting it to the same intrusive regulatory regime that has historically governed basic telephone service and public utilities like water, gas, and electricity.

That would be a serious mistake. The US Supreme Court has made crystal clear, as recently as this June when it struck down President Joe Biden’s student loan forgiveness program, that it will invalidate federal agency regulations on matters of major economic and political significance—what the court refers to as “major questions”—unless Congress has given the agency specific, unambiguous authority to regulate on the subject.

One might think—as we do—that the “major questions doctrine” is wrong, and that federal agencies should have relatively broad discretion to use existing statutes to address new challenges. But there’s no denying that the Supreme Court views things differently. In the last two years alone, the court has used the doctrine to strike down the CDC’s eviction moratorium, OSHA’s workplace vaccine mandate, and the EPA’s clean power initiative, as well as the Biden student loan plan. The message from the court is clear.

As we explain in a white paper published today, any effort by the commission to subject broadband internet access service to traditional common carriage regulation can’t survive the “major questions” buzzsaw.

Such regulation will have enormous consequences for our economy and our society; the public has been engaged in a years-long debate about what policies are best suited to maximizing the potential of broadband; and Congress has repeatedly considered, and is still considering, what regulatory framework will best allow broadband internet access service to flourish.

At the same time, the commission lacks the clear authorization that the Supreme Court requires: Neither the Communications Act nor the 1996 Telecommunications Act unambiguously authorizes the FCC to take such a step—no surprise, considering that the internet as we know it today did not exist when those statutes were enacted.

This is exactly the kind of regulatory effort that the Supreme Court will find to be a major question. As Justice Brett Kavanaugh noted when, as a judge on the D.C. Circuit, he considered a challenge to a previous commission attempt to regulate broadband in this way, that proposition is “indisputable,” and “any other conclusion would fail the straight-face test.”

To be sure, even facing a certain loss, the FCC may be tempted to “get caught trying” and to let the court pronounce its judgments. But that path of political expedience comes with enormous costs. Rulemakings of this sort are massive undertakings. Prior commission efforts have generated millions of comments, and parties have spent collectively millions of dollars to comment on the proposed rules.

And, if past is prologue, years of costly litigation will follow. And for what? Just so the Supreme Court can confirm what is already apparent: The Commission lacks authority to act.

Worse, the cost here is measured not just in dollars spent, but in opportunities wasted. Our time in government and representing private parties has convinced us that rulemakings of this scope impose enormous demands on agency leadership and staff, to the detriment of other agency priorities that can be pursued lawfully. And the agency process and ensuing litigation inevitably freeze the legislative process, as Congress, industry, and the public await the court’s judgment.

Moreover, there can be long-term adverse consequences for regulators tempted to let the court “play the heavy.” Court decisions can have unpredictable consequences, and decisions restricting agency authority may impede regulatory efforts in a range of areas for years to come.

There’s a better way. Congress should enact legislation to resolve this issue once and for all. If Congress won’t act, the FCC could use its finite resources to pursue more legally defensible policy initiatives, such as adopting light-touch net neutrality rules under Section 706 of the Telecommunications Act.

Only if these paths are pursued can we avoid the massive waste of resources for the government, industry, and the public, as well as the lost opportunity to advance more pressing policy goals such as deploying robust broadband service to all Americans.

And only if these paths are pursued will the complicated policy issues surrounding broadband regulation be resolved within an enduring and lawful regulatory scheme that will achieve the laudable objectives that the Commission seeks.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Donald Verrilli is the founding partner of the DC office of Munger, Tolles & Olson. He served as Solicitor General of the United States from 2011 to 2016.

Ian Gershengorn is the chair of the appellate and Supreme Court practice at Jenner & Block and was the Acting Solicitor General of the United States under President Barack Obama.

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