Key GOP Lawmakers Ask Court to Void FCC’s Net Neutrality Rules
The Chamber of Commerce, a former Republican commissioner, and free-market think tanks also submitted briefs opposing the rules.
Jake Neenan
WASHINGTON, August 20, 2024 – Telecom-focused Republican lawmakers asked the Sixth Circuit Monday to side with the internet service providers challenging federal net neutrality rules.
The lawmakers included Sen. Ted Cruz, R-Texas, ranking member of the Senate Commerce Committee, and Rep. Cathy McMorris Rodgers, R-Wash., Chair of the House Energy and Commerce Committee, both of which have oversight authority over the Federal Communications Commission, which adopted the net neutrality rules in April.
The GOP lawmakers said the FCC’s rules contradicted Congress’s deregulatory intent when it passed the Telecommunications Act of 1996 with language that specified that “information services” received less regulatory guardrails than “telecommunications services.”
“Regulating broadband internet access as a ‘telecommunications service’ would fly in the face of Congress’s objective in passing the law,” the lawmakers wrote, citing the 1996 Act’s policy statement that says the law aims to preserve a competitive market for the internet “unfettered by federal or state regulation.”
Net neutrality rules – stayed by the Sixth Circuit on Aug. 1 –would reclassify broadband internet access as a telecommunications service, opening ISPs to more expansive regulatory oversight by the FCC. The agency’s order cited the 2005 Supreme Court case NCTA v. Brand X Internet Services as affirming its authority to decide the designation for technologies as they evolve.
The GOP filing was one of eight “friend of the court” briefs filed Monday in support of the ISPs, with others coming from a former Republican FCC commissioner, the Chamber of Commerce, and conservative think tanks. No briefs in favor of the FCC were filed.
In staying the rules pushed by FCC Chairwoman Jessica Rosenworcel, a Sixth Circuit panel wrote that ISPs were “likely to succeed on the merits” because the action constituted a major question.
In one of several recent rulings that defanged regulatory agencies, the Supreme Court expanded its major questions doctrine in 2022 to prevent agencies from acting on “matters of vast political and economic significance” without explicit authorization from Congress.
The lawmakers’ court brief was a continuation of their hostility to Democratic telecom policy. GOP House members introduced all-but-doomed resolutions to block net neutrality and the FCC’s digital discrimination rules, and have repeatedly grilled commissioners in hearings.
Cruz moved in June to scuttle an effort to tap proceeds from future spectrum auctions to fund the shuttered Affordable Connectivity Program and other Democratic telecom priorities like spectrum sharing research.
A full brief from the FCC is due to Sixth Circuit judges Sept. 11. Oral arguments are slated for late October.
