Experts Disagree on Net Neutrality Legal Ground
The Supreme Court has shown less deference to federal agencies in recent years, a BBLO panel heard.
WASHINGTON, September 27, 2023 – Experts disagreed at a Broadband Breakfast Live Online event on Wednesday whether reinstituted Federal Communications Commission rules on net neutrality would survive legal challenges.
The FCC announced on Tuesday that it is looking to reinstate its 2015 net neutrality regulations, which involve categorizing broadband internet as a Title II service under the Communications Act of 1934. That would give the commission more muscle to regulate the industry, on par with its authority over telephone companies.
In particular, the commission is looking to prevent carriers from throttling or increasing users’ speed depending on the site they want to access.
The move survived legal scrutiny in 2016, when the D.C. Court of Appeals held the agency had the authority to classify technologies under the act as it saw fit. The Supreme Court would ultimately refuse to hear the case and let the D.C. ruling stand.
Berin Szoka, president of policy think tank TechFreedom, said Wednesday the legal landscape has changed since then, with a conservative majority on the Supreme Court that is more willing to tell federal agencies they are overstepping their boundaries.
“In the last six years, the ground has shifted very significantly,” he said.
He pointed to a dissent from then-D.C. Circuit judge Brett Kavanaugh when the court refused to rehear the net neutrality case. Kavanaugh, now part of a conservative majority on the Supreme Court, argued the FCC’s move to reclassify broadband was too drastic for it to do without explicit authorization from Congress.
“That was a dissent in 2017. That’s now the Court’s majority position,” he said, referring to the so-called major questions doctrine. Under the doctrine, the Supreme Court has ruled in recent years that federal agencies cannot enact policies that address major economic or political questions without explicit congressional authorization, giving agencies less authority to regulate as they see fit.
Stephanie Joyce, chief of staff and senior vice president of the Computer & Communications Industry Association, a tech trade group, said the doctrine might not apply to the FCC’s action at all.
She compared net neutrality rules to the EPA’s attempt to transition power plants to clean energy sources, which the Supreme Court nixed under the doctrine.
The EPA had not taken such a step before, she said, making it a bigger change in regulation than the FCC’s reclassification of broadband. That and other technology reclassifications have precedent at the commission, she said, including both the 2015 rules and a 1998 reclassification of DSL technology.
“I’m not sure the major questions doctrine is going to carry the day here,” she said.
Chip Pickering, CEO of another tech trade group, INCOMPAS, agreed that “there’s a lot of uncertainty” about how the Supreme Court would treat a challenge net neutrality rules from the FCC. But he said that a gridlocked Congress has little chance of enacting wider regulation on internet providers.
“Title II has, so far, been the only authority that’s been upheld on net neutrality,” he said. “And we have to act now.”
FCC commissioners will vote on whether to put up the proposed rules for public comment on October 19, barring a government shutdown.
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BREAKING NEWS SESSION! Wednesday, September 27 – What Happens Next on Net Neutrality?
Federal Communications Commission Chairwoman Jessica Rosenworcel wasted no time in promulgating rules regarding network neutrality. With Anna Gomez’ confirmation as the elusive fifth commissioner, Democrats finally have a majority at the agency. The chairwoman has said that she will put forward proposed rules on the topic at the agency’s open meeting on October 19. The partisan-tinged topic is expected to largely be a return of the 2015 rules under the agency’s authority under Title II of the Communications Act. One day after Rosenworcel’s Tuesday speech on net neutrality – and one day before the item is publicly released – Broadband Breakfast will convene industry and civil society stakeholders in a discussion about What Happens Next?
Panelists
- Chip Pickering, CEO, INCOMPAS
- Stephanie Joyce, Chief of Staff and Senior Vice President Computer & Communications Industry Association
- Joe Kane, Director, Broadband and Spectrum Policy, Information Technology and Innovation Foundation
- David Zumwalt, CEO, WISPA: Broadband Without Boundaries
- Berin Szoka, President, TechFreedom
- Drew Clark (moderator), Editor and Publisher, Broadband Breakfast
Panelist resources:
- FCC Looking to Reinstate Net Neutrality Rules, Broadband Breakfast, September 26, 2023
- On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate, Broadband Breakfast, May 11, 2021
- D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC, by Drew Clark, Broadband Breakfast, October 7, 2019
For nearly three decades, Chip Pickering has been at the forefront of every major telecommunications milestone. From his time as a Senate staffer on the Commerce Committee shaping the Telecommunications Act of 1996, to his role as a Member of Congress leading on tech issues and overseeing the transition to the commercial internet, to serving as CEO of the leading internet and competitive networks association advocating for more competition and innovation in our ever-evolving industry. Through his leadership at INCOMPAS, Pickering continues to be a trusted voice and a leading expert on important issues facing the tech and telecommunications industry.
Stephanie Joyce joined CCIA after decades in private practice representing technology companies and competitive carriers before state and federal administrative agencies and courts. She is an experienced advocate for procompetitive policy, including her advocacy for CCIA at the FCC on broadband deployment and Open Internet rules. Stephanie has also provided counsel to telecommunications companies, as well as CCIA, on privacy matters. Stephanie is a graduate of the University of Notre Dame, received her graduate degree from George Washington University Elliott School of International Affairs, and her law degree from George Washington University Law School.
Joe Kane is director of broadband and spectrum policy at ITIF. Previously, he was a technology policy fellow at the R Street Institute, where he covered spectrum policy, broadband deployment and regulation, competition, and consumer protection. Earlier, Joe was a graduate research fellow at the Mercatus Center, where he worked on Internet policy issues, telecom regulation, and the role of the FCC.
David Zumwalt is CEO & CEO of WISPA – Broadband Without Boundaries.WISPA represents the interests of innovative, often small ISPs that provide fixed wireless, fiber and other connectivity solutions to consumers, businesses, first responders and community anchor institutions in the digital divide. Supported by a robust vendor and supplier ecosystem, these ISPs deliver primary broadband connectivity in traditionally underserved and unserved suburban, rural and tribal communities nationwide, with a growing subscriber base now reaching nine million Americans. Prior to WISPA he served as Chief Operating Officer of Broadband VI, a major Internet Service Provider in the US Virgin Islands. He also served as the Executive Director of the University of the Virgin Islands Research & Technology Park, an instrumentality of the USVI government formed to establish and grow a vibrant knowledge-based sector in the Territory’s economy. He also founded and served as Chairman and CEO of Dallas-based CNet, Inc., a leading provider of radio frequency (RF) engineering and operational support system software and services to the worldwide wireless communications industry, securing significant customer relationships in forty countries.
Berin Szoka serves as President of TechFreedom. Previously, he was a Senior Fellow and the Director of the Center for Internet Freedom at The Progress & Freedom Foundation. Before joining PFF, he was an Associate in the Communications Practice Group at Latham & Watkins LLP, where he advised clients on regulations affecting the Internet and telecommunications industries.
Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative
Illustration by Bryce Durbin of TechCrunch
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