The FCC’s Net Neutrality Dodge Looks Doomed
The Federal Communications Commission (FCC) continues to swim against the changing tide of administrative law. The Commission pleaded with a panel of three judges on Thursday not to strike down its order from earlier this year to regulate broadband Internet service under Title II of the Communications Act in the guise of so-called “net neutrality.” But the FCC’s case will likely succumb as the tide rushes past its position in the case at hand, Ohio Telecom Association v. Federal Communications Commission.
Recent Supreme Court decisions have put significant guardrails on administrative agencies, such as the FCC. In West Virginia v. EPA, the Court put meat on the bones of the “major questions doctrine,” holding that agencies can’t claim broad authority over matters of major economic and political significance unless they have clear congressional authorization to do so. In Loper Bright v. Raimondo, the court did away with so-called Chevron deference and instead said that courts should decide legal questions, such as what a statute means, for themselves rather than deferring to agencies’ interpretations.
These significant shifts stand in contrast to the FCC’s recent action, which used tenuous statutory interpretation to impose the sweeping regulatory edifice of Title II, rules designed for the old telephone monopoly, onto the Internet ecosystem. It would seem that the agency is poised to run headlong into a judicial roadblock.
But the FCC pitted these two limitations against each other when it argued on October 31 that its order is not subject to the major questions doctrine because that doctrine was merely an exception to Chevron deference, which no longer exists. The FCC is wrong about the relationship between Loper Bright and the major questions doctrine. Post Chevron, the court is supposed to decide the best interpretation of a statute and apply that meaning to the case in front of it.
The major questions doctrine operates before any of that analysis to pose a threshold question: Is the agency claiming vast or innovative authority over a matter of major political or economic significance? The answer to that question then frames the statutory interpretation question. If the answer is yes, then the statute the FCC claims authorizes its action must do so unambiguously. Therefore, even if the FCC’s reading of an ambiguous statute is “better” than its opponents’, it would still lose.
In this case, the answer to the threshold question is clearly yes. The FCC order itself took great pains to present its decision to impose Title II regulations as essential to every American’s daily life and even the national security of the country. At this morning’s argument everyone, including the FCC, seemed to agree that if the major questions doctrine applies, the Title II order fails the test.
It was less clear how the Sixth Circuit plans to apply these doctrines. The judges seemed keen to flex their statutory interpretation muscles after years of deferring to agencies, but they must be cognizant to ask the right questions when interpreting.
In any case, the FCC seems likely to lose, either under the major questions doctrine or under the normal principles of statutory interpretation. That eventual decision will confirm that the Commission would have been better off focusing on policies that actually benefit consumers rather than taking this partisan frolic into Title II for broadband Internet.
