‘Net Neutrality’ Faces a Stiff Judicial Test

The revived rule likely violates the major questions doctrine.

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The Federal Communications Commission voted Thursday along partisan lines to reclassify broadband internet access service as a common carrier telecommunications service under Title II of the Communications Act. The agency is abandoning a light-touch regulatory approach that spurred innovation and investment in its effort to revive Obama era rules enforcing net neutrality.

An appeal of the FCC’s order is almost certain and is likely to succeed under the major-questions doctrine given that the Supreme Court struck down similarly unauthorized use of agency authority in its 2022 ruling in West Virginia v. Environmental Protection Agency. The doctrine holds it is the people’s representatives in Congress who authorize administrative agency power. For questions of vast economic and political significance, an agency must have clear congressional authorization for any regulatory power it asserts.

There seems little question that the FCC’s asserted power concerns a question of major economic and political significance. Hundreds of millions of Americans rely on broadband internet. It’s a technology that touches nearly every aspect of our lives and the economy. Broadband regulation has enormous consequences and declaring providers common carriers is a massive change.

Read the full article on the Wall Street Journal.