Major questions on net neutrality: A new report

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A new Competitive Enterprise Institute report, Major Questions on Net Neutrality: A primer on the FCC’s brewing broadband legal fight, analyzes the FCC’s effort to ensure “net neutrality” by classifying broadband internet access service (BIAS) as a common carrier telecommunications service and how that effort will fare in an appeal to the Supreme Court under the major questions doctrine. The report argues that the FCC will likely fail under such a challenge.

The major questions doctrine is a rule of statutory construction that is rooted in the Constitutional separation of powers and the principle that it is the people’s representatives in Congress who write the laws and authorize administrative agency power. The doctrine holds that for questions of vast economic and political significance, a federal administrative agency (such as the FCC) must have clear congressional authorization for any regulatory power it asserts. Absent clear congressional authorization, the agency lacks authority because Congress has retained the power to make those determinations. 

The report looks at the Supreme Court’s development of the major questions doctrine and the saga of FCC BIAS classification. It argues that while the Supreme Court has not yet examined the major questions doctrine in this context, the doctrine likely will apply to the FCC’s telecommunications service classification of BIAS because it is a question of vast economic and political significance. It further argues that the FCC appears to lack clear statutory authority for such classification based on the at best ambiguous language in the Communications Act and Congress’s unwillingness to pass legislation classifying BIAS as a telecommunications service. 

Such an outcome would be a victory for the separation of powers principle that Congress makes decisions of vast economic and political significance rather than unelected agencies.

Read the full report here.