Federal Judges Debate FCC’s Authority Amid Shifting Administration Policies
A panel of judges from the 6th U.S. Circuit Court of Appeals expressed skepticism Thursday about whether the Federal Communications Commission (FCC) has the legal authority to reinstate net neutrality regulations. The landmark rules, which prevent internet service providers (ISPs) from favoring or blocking content, are being contested by industry groups, which argue that Congress did not grant the FCC the necessary regulatory power.
Background on Net Neutrality and Legal Challenge
Net neutrality, which requires ISPs to provide equal treatment of data without selectively slowing or blocking content, was originally established in 2015 under President Obama. However, the rules were repealed by the FCC in 2017 during the Trump administration. This year, with support from President Joe Biden, the FCC moved to restore these regulations, arguing that they are essential for an open internet.
The Cincinnati-based 6th Circuit had temporarily blocked the FCC from enforcing net neutrality in August while the legal challenge plays out. At the heart of the case is the question of whether the FCC can classify broadband as a “telecommunications service,” thus bringing it under a stricter regulatory framework.
Judges Question Congressional Intent and FCC Authority
During Thursday’s hearing, Judge Richard Allen Griffin raised concerns about the FCC’s oscillating stance on net neutrality over the past three administrations. He questioned whether it would be more appropriate to defer to Congress, which has historically not endorsed comprehensive regulation of the internet.
“If it’s a close call, should we not defer to the policy of Congress, which is to not provide for extensive regulation?” Judge Griffin asked Jacob Lewis, the FCC’s Associate General Counsel.
Lewis argued that federal law does grant the FCC authority to implement these rules, citing that Congress anticipated the commission would need discretion to regulate in the public interest. However, this argument was met with reservations from the court, particularly given Congress’s lack of explicit directives on net neutrality.
Industry Pushback and the “Major Questions” Doctrine
Telecom industry groups argue that the FCC is overstepping by claiming powers not directly given by Congress. Jeff Wall, representing the telecom industry, highlighted the “major questions” doctrine, a legal standard which states that agencies need clear congressional authorization for actions of substantial economic and political impact.
“Net neutrality is likely a major question requiring clear congressional authorization,” the 6th Circuit wrote in its prior decision to block FCC enforcement. The telecom industry maintains that Congress, rather than a federal agency, should address any sweeping regulatory changes, noting that ISPs oppose the rules on grounds that they stifle innovation and slow down investments.
Debate on Statutory Language vs. Broad Regulatory Approach
Judge Raymond Kethledge steered the discussion toward the exact language of the relevant statutes, suggesting a focus on legislative text over broader judicial doctrines. “After 16 years as a judge, let’s just talk about the words,” he remarked, emphasizing that the court’s decision should hinge on the precise statutory language rather than regulatory flexibility or the major questions doctrine.
