‘Loper Bright’ Decision Reins In Regulatory Overreach by FCC, Says ITIF

WASHINGTON—Following the Loper Bright v. Raimondo decision, the Information Technology and Innovation Foundation (ITIF), the leading think tank for science and technology policy, released the following statement from Joe Kane, director of broadband and spectrum policy:

“The Supreme Court’s decision in Loper Bright v. Raimondo makes it even less likely that the FCC’s recent regulatory overreaches on Digital Discrimination and Title II for the Internet will survive judicial review.

Before, courts would defer to agency’s interpretation of an ambiguous statute if that interpretation was merely reasonable. Today, the Supreme Court recognized the Administrative Procedure Act demands “that court’s exercise independent judgment in construing statutes administered by agencies.”

The FCC’s recent order on Digital Discrimination was already likely unlawful because it imposed disparate impact liability not authorized by the statute. Now, the Commission will no longer have the refuge of statutory ambiguity to shield this overreach from judicial scrutiny. Likewise courts previously deferred to the FCC when it relied on statutory ambiguity for its misguided imposition of Title II regulation on the Internet. It will not get the same deference this time around.

These recent orders are bad policy, and the FCC should not have adopted them. Now it is now even more likely that courts will find them unlawful too.”

Contact: Austin Slater, [email protected]