Brief of Amicus Curiae of CEI, Cato, Reason Foundation et al. in Berninger v. FCC

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This Court should grant certiorari because the court below incorrectly concluded that Section 706 of the Telecommunications Act of 1996 (“1996 Act”), 47 U.S.C. § 1302, empowers the Federal Communications Commission (“FCC”) to promulgate rules governing broadband service providers’ treatment of Internet traffic. In enacting § 706, Congress did not grant the agency a new source of regulatory authority. Rather, § 706 instructs the agency on how to use the authorities afforded to it by the Communications Act of 1934 (“1934 Act”) in the context of broadband deployment.

The D.C. Circuit relied on its previous holding in Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), that        § 706 authorized the FCC to issue a rule requiring Internet service providers to disclose their network management practices. Id. at 659. The Verizon court deferred to the agency’s interpretation of § 706. Id. at 635. Yet Congress did not insert § 706 into the 1934 Act, the statute that the FCC is authorized to administer. Because § 706 falls outside of that older statute, the lower court should not have deferred to the agency’s interpretation. Had the court independently examined the statute, it would have likely determined that § 706 does not, by itself, confer any regulatory authority whatsoever.

Moreover, even if the courts would ordinarily defer to the FCC’s construction of § 706, whether the provision authorizes the agency to regulate communications in any manner it deems appropriate to encourage broadband deployment is a question of “deep economic and political significance.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (internal quotation marks omitted). In such cases, it is the task of the courts—not the agency—“to determine the correct reading” of the statute. Id.

The FCC’s reading of § 706 would seemingly empower the agency to regulate not only broadband providers, but also any firm to the extent that it communicates over the Internet in any manner that could affect broadband deployment. Because broadband deployment is directly linked to consumer demand for broadband, the FCC’s interpretation would conceivably authorize the agency to regulate how information is transmitted by the apps, services, and websites that influence how much consumers are willing to pay for broadband access. Using § 706, the FCC could justify rules governing not only broadband providers, but also popular Internet platforms such as Netflix, YouTube, or Facebook. Had Congress “wished to assign” such sweeping powers to the FCC, “it surely would have done so expressly.” Id. Section 706, however, does not come close to clearly authorizing the FCC to regulate the entire Internet.

View the full Amicus Brief here