ISPs to Court: Net Neutrality is a Major Question

WASHINGTON, Oct. 3, 2024 – Internet service providers looking to get net neutrality rules scrapped took one more chance to sway judges Wednesday ahead of oral arguments. They hit familiar points, including the Supreme Court’s major questions rule.

Reply Brief of ISPs in Net Neutrality Lawsuit

The major-questions doctrine should make this case straightforward. Although a previous panel granted a stay on that ground, the Commission ignores the major-questions doctrine until late in its brief. When it finally engages, the Commission suggests that treating internet providers as public utilities is nothing new and nothing significant. As the unanimous stay panel and at least one Supreme Court Justice have already recognized, neither is true. The Commission in 2015 broke from two decades of agency precedent, and its double-reversal since then further highlights the issue’s political salience.

Available for Breakfast Club Members

The Federal Communications Commission is trying to keep alive its April order reclassifying broadband as a Title II service under the Communications Act, subject to more stringent FCC oversight. ISPs convinced the Sixth Circuit to put the rules on hold in August, and oral arguments are scheduled for Oct. 31.

“[T]he [FCC] says that the major-questions doctrine cannot preclude it from classifying broadband. That is true but irrelevant,” the broadband trade groups said in a brief Wednesday filed by attorney Jeffrey Wall at Sullivan & Cromwell. “[ISP] petitioners do not dispute that the [FCC] may classify interstate communications services, including broadband. [ISP] petitioners’ point is that the [FCC] made the wrong classification, including because it incorrectly believed that the major-questions doctrine did not apply.”