ISPs Continue to Cite Major Questions Doctrine in Net Neutrality Challenge

WASHINGTON, August 13, 2024 – The broadband providers continued yesterday to lean on the major questions doctrine in their legal effort to strike down the Federal Communications Commission’s net neutrality rules. Sixth Circuit judges have already signaled they’re sympathetic to that line of argument.

Opening Brief of Petitioners Ohio Telecom Association

In its “Open Internet” Order, the Federal Communications Commission has asserted total authority over how Americans access the internet. That is not hyperbole. The Commission claims the power to regulate providers of high-speed internet-access service (called “broadband”) like a public utility, under the 90-year-old regime built for the old Ma Bell telephone monopoly. That regime, called “Title II” as shorthand for Title II of the Communications Act of 1934, includes the power to set prices, dictate terms and conditions, require or prohibit investment or divestment, and more.

Available to Breakfast Club Members

“Subjecting broadband to public-utility-style regulation under Title II [of the Communications Act] is a quintessential major question,” broadband industry groups wrote in a brief filed late last night. “The Commission claims authority of ‘vast economic and political significance’ — the power to regulate ‘virtually every aspect’ of one of the nation’s largest and most essential industries.”