Net neutrality’s court fate depends on whether broadband is “telecommunications”

The Federal Communications Commission currently regulates broadband internet access service (BIAS, if you will) as an "information service" under Title I of the Communications Act. As the FCC contemplates reclassifying BIAS as a telecommunications service under Title II's common-carrier framework, the question is whether the FCC has authority to do so. Federal appeals courts have upheld previous FCC decisions on whether to apply common carrier rules to broadband. But some legal commentators claim the FCC is doomed to fail this time because of the Supreme Court's evolving approach on whether federal agencies can decide "major questions" without explicit instructions from Congress. Pantelis Michalopoulos, a Steptoe & Johnson partner who represented tech companies in the defense of net neutrality rules, said a recent Supreme Court decision "teaches us that the major questions doctrine is not some new chimera, some new animal dreamt up by the court, but rather the crystallization of existing law." Michalopoulos said that one relevant case for the FCC is the 2000 Supreme Court decision in FDA v. Brown & Williamson Tobacco Corporation, which held that the Food and Drug Administration didn't have authority to regulate tobacco products as drugs or devices. He pointed out that the FCC already survived scrutiny under the FDA precedent in two cases decided at the DC Circuit appeals court—Verizon v. FCC in 2014 and USTelecom et al v. FCC in 2016. The USTelecom v. FCC ruling that upheld Title II regulation of broadband cited the Supreme Court's FDA decision. It also cited the Supreme Court's 2005 ruling in National Cable & Telecommunications Association v. Brand X Internet Services, which upheld the FCC's authority to decide that cable broadband should be regulated as an information service instead of a telecommunications service. One of the biggest unknowns is whether the Supreme Court will take up Title II regulation of broadband at all. Benton Institute for Broadband & Society Senior Counselor Andrew Jay Schwartzman said, "In the parlance of Supreme Court practitioners, it is not a 'good vehicle' for the Court. In the Brand X case, the question was whether the FCC interpreted the statute correctly in deciding whether to put BIAS into Title I, Title II, or Title V. No one on the Court expressed any question that the FCC would have no authority at all over [broadband service]. That would likely require overruling Brand X. While Justice [Clarence] Thomas has now said he regrets his vote in Brand X, that was in the context of Chevron deference, not the major question doctrine." While broadband's regulatory classification is important, Schwartzman added that "overruling a precedent uses a good bit of judicial political capital" and that he suspects most of the justices "want to avoid that in a case that is surely important but doesn't rise to the level of abortion or the Second Amendment. There are plenty of other cases for the Supreme Court to expand on the [major questions doctrine] where the issues have not been before the court and don't carry as much baggage as net neutrality."