Net Neutrality’s Fate Hinges on Major Questions Doctrine

The future of net neutrality may not hinge on the Sixth Circuit’s views of whether it’s fair for a provider to mess with how long it takes certain sites to load, but rather whether the issue is too big a job for the Federal Communications Commission.

Thursday’s oral arguments in a challenge to the FCC’s rules could focus heavily on what’s called the “major questions doctrine” and whether Congress said the agency can unilaterally prevent internet service providers like Comcast Corp. and AT&T Inc. from blocking or slowing traffic from competitors like Google and Netflix Inc.

Under the doctrine, a law mustn’t be interpreted to give an agency the power to decide major issues unless it specifically says as much. The industry groups challenging the rules—which the FCC passed in April on a party-line vote—told the Cincinnati-based US Court of Appeals for the Sixth Circuit that their challenge succeeds on these grounds, and that merits-related arguments are secondary.

“You don’t get there if the rule is thrown out as a violation of the major questions rule,” said Kit Walsh, director of AI and access-to-knowledge legal projects at the digital rights group Electronic Frontier Foundation.

The rules also forbid telecommunications companies from giving preferential treatment through “fast lanes” to preferred customers.

A suit was filed before the rules went into effect, and the Sixth Circuit received the case in June via a random draw.

Judges Richard Allen Griffin, Raymond M. Kethledge, and John K. Bush, all appointees of Republican presidents, make up Thursday’s panel. In August, a different panel blocked the rules while the legal challenge is ongoing, saying arguments that Congress must address the issue were likely to succeed.

Years-Long Fight

The arguments are the latest in years of legal and regulatory wrangling over whether broadband should be classified as the more heavily-regulated “telecommunications service” or the lighter-regulated “information service.”

Modern net neutrality rules were first enacted under President Barack Obama in 2015 before being rescinded under President Donald Trump. Congressional action on broadband has been stymied by partisan divides for decades, leaving regulators and states like California, Colorado, and Oregon to pick up the baton.

Service providers and Republicans oppose the rules, saying the broadband market works well and that the new rules invite government interference.

“There still isn’t a problem to solve,” said Robert M. McDowell, a Republican appointee to the FCC from 2006 to 2013. McDowell—who’s now a partner at Cooley LLP, which represented groups that supported the agency’s net neutrality rules repeal—added that “all those predictions of apocalypse didn’t happen, not even close.”

In their brief, industry groups say the agency “has asserted total authority over how Americans access the internet,” and that, should the judges reach the issue, the law should be read to classify broadband as an “information service.”

Net neutrality advocates claim the rules are needed to prevent unnecessary and potentially harmful speed throttling, and the FCC says classifying broadband a telecommunications service “turns on the factual particulars of how broadband operates and is used by consumers.”

The major questions doctrine “offers no basis to contravene the best reading of the statute,” the agency says.

‘Battle Fatigue’

Barbara Cherry, a professor emeritus at Indiana University who co-wrote a 2014 paper on why the FCC should classify commercial internet as a telecommunications service, said the major questions doctrine is a “wild card.”

Advocates aren’t optimistic about the outcome. Blair Levin, a former FCC senior staffer who’s now with the Brookings Institution, said the panel of judges that blocked the rules “was as favorable a panel as the FCC could have hoped for,” and that the panel hearing Thursday’s arguments appears less so.

Even if the court strikes down the rules, that doesn’t mean broadband speed fluctuations are imminent, said John Bergmayer, legal director at the nonprofit Public Knowledge. It and others will argue Thursday in support of the FCC.

Bergmayer said in the absence of FCC rules, state regulations would likely lead internet providers to adopt a “uniform policy” nationwide.

After years of legal wrangling, McDowell senses “battle fatigue,” despite broadband being the reason that much of the world continued working in the early days of the pandemic.

“It fared very well and really helped keep the country functioning,” McDowell said of the period, where no national net neutrality rules were in place.

The petitioners are represented by Sullivan & Cromwell LLP, Wiley Rein LLP, Lerman Senter PLLC, Gibson, Dunn & Crutcher LLP, Latham & Watkins LLP, and MoloLamken LLP. The FCC is represented in-house. The US is represented by the Justice Department.

The case is MCP No. 185 Open Internet Rule (FCC 24-52), 6th Cir., No. 24-7000, oral argument scheduled 10/31/24.