Net Neutrality Rules Face ‘Major Questions’ Buzzsaw at High Court

The Federal Communications Commission appears poised to again consider how broadband internet access service should be regulated to ensure “net neutrality” so all consumers can enjoy free and unimpeded access to lawful internet content. However, the key question is who decides how to translate that goal into law. The FCC wants to take that responsibility for itself, treating broadband as though it were a traditional common carrier service under Title II of the Communications Act and subjecting it to the same intrusive regulatory regime that has historically governed basic telephone service and public utilities like water, gas, and electricity. That would be a serious mistake. Congress should enact legislation to resolve this issue once and for all, or, if Congress won’t act, the FCC could use its finite resources to pursue more legally defensible policy initiatives, such as adopting light-touch net neutrality rules under Section 706 of the Telecommunications Act.

[Donald Verrilli is the founding partner of the DC office of Munger, Tolles & Olson. He served as Solicitor General of the United States from 2011 to 2016. Ian Gershengorn is the chair of the appellate and Supreme Court practice at Jenner & Block and was the Acting Solicitor General of the United States under President Barack Obama. Over the course of our careers, we have represented the federal government and broadband providers on issues relevant to this topic, and we gratefully acknowledge the support of USTelecom–The Broadband Association and NCTA–The Internet & Television Association—in funding our analysis. ]