The Major Questions Doctrine

It’s becoming increasingly difficult for administrative agencies like the Federal Communications Commission to undertake substantial new initiatives, since doing so inevitably results in multi-year court cases that are increasingly ruling against the agency. We saw this in 2024 in the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which has been widely interpreted to mean an end to the Chevron deference. That deference came from a 1984 case that said experts at federal agencies should be able to make policy decisions that fit within their overall mandate from Congress. New FCC Chairman Brandon Carr has announced an agenda to tackle new areas of investigation, such as regulating web companies through Section 230. Chairman Carr believes Section 230 of the Telecommunication Act of 1996 gives him the tool to take on tech companies. But any FCC action on Section 230 will likely trigger the major questions doctrine since Congress has never given the FCC any explicit direction on how to interpret or enforce Section 230. The statue language on Section 230 has quietly lain embedded in FCC regulations since 1996. If the courts stay consistent with the concept that only Congress can make major regulatory changes, the FCC will be hobbled in breaking new regulatory ground.