Judge Kavanaugh defends his net neutrality dissent in Senate hearing

During his second day of Senate confirmation hearings, Judge Brett Kavanaugh defended his dissent in a federal court decision that upheld the Federal Communications Commission's 2015 net neutrality rules. Pressed by Sen Amy Klobuchar (D-MN) why he disagreed with the rest of his colleagues on the US Court of Appeals for the DC Circuit that the Federal Communications Commission was within its authority to create the rules, Judge Kavanaugh said he was simply following legal precedent and wasn't looking to strip the agency of its power. As a judge on the US Court of Appeals for the DC Circuit, Kavanaugh supported a petition from the broadband industry for the full court to rehear the case that upheld the FCC's right to impose utility-style regulations on internet services. Specifically, the court in its decision said the agency had the authority to reclassify internet services as a Title II (telecommunications) service under the Communications Act. This reclassification served as the basis for the strict net neutrality rules adopted by the Obama administration in 2015. The full court denied the petition to rehear the case. It cited the so-called the US Supreme Court's Chevron doctrine, which gives expert federal agencies the discretion to interpret ambiguous statutes. But Judge Kavanaugh disagreed and wrote a dissenting opinion. Judge  Kavanaugh cited the "major decisions" doctrine, which is related to Chevron. This doctrine says a court shouldn't grant deference to a federal agency if Congress hasn't spoken clearly on the subject, which he said wasn't the case with the net neutrality rules.

"It's OK for Congress to delegate various matters to the executive agencies to do rules," he said. "But on major questions of major economic or social significance, we expect Congress to speak clearly before such delegation, and that's what had not happened, in my view, with respect on net neutrality and I felt bound by precedent."