Major Questions Doctrine

The U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo (see 2406280043) doesn’t foreclose the FCC's ability to act on net neutrality and other important public issues, Stephanie Joyce, senior vice president-chief of staff at the Computer & Communications Industry Association, said during a Broadband Breakfast webinar Wednesday.

It's "astonishing that the FCC is once again seeking to impose heavy-handed regulation on internet access," TechFreedom and the Washington Legal Foundation told the 6th U.S. Circuit Court of Appeals Wednesday. The groups urged the court in an amicus brief Wednesday that it should reverse the commission's order restoring Title II classification of broadband (see 2408130001). Their brief said the "only question for this court" is whether the FCC has the statutory authority to act (docket 24-7000), arguing the order is a violation of the major questions doctrine.

The FCC "must point to clear congressional authorization" before claiming it can reclassify broadband as a Title II telecom service under the Communications Act, a coalition of industry groups told the 6th U.S. Circuit Court of Appeals in its challenge of the commission's net neutrality rules. The court granted a temporary stay of the rules earlier this month (see 2408010066). The petitioners -- ACA Connects, CTIA, NCTA, USTelecom, the Wireless ISP Association and several state telecom associations -- said in their opening brief filed late Monday (docket 24-7000) that the "best reading of the federal communications laws forecloses the commission’s reclassification."

FCC Chairwoman Jessica Rosenworcel vowed she will continue fighting for the commission's net neutrality order following the 6th U.S. Circuit Court of Appeals' decision that stayed the rules Thursday (see 2408010065). "The American public wants an internet that is fast, open and fair," and Thursday's decision "is a setback, but we will not give up the fight for net neutrality," Rosenworcel said.

Members of the congressional Universal Service Fund revamp working group are considering whether, and how much, the 5th U.S. Circuit Court of Appeals' ruling will affect their rollout of a framework for overhauling the program. The court ruled last week that the FCC's USF contribution factor is unconstitutional (see 2407240043). Experts believe lawmakers will likely factor the ruling into the framework, but it could be moot should the U.S. Supreme Court reverse the decision on appeal (see 2407260044). Uncertainty about USF’s future will likely extend the working group’s already lengthy process, lobbyists told us.

The FCC "offers no plausible reason why Congress would have used classic disparate-treatment language to create a disparate-impact regime," a coalition of industry groups said in a reply brief to the 8th U.S. Circuit Court of Appeals Monday. The brief explained the Minnesota Telecom Alliance's challenge of the FCC's digital discrimination rules (docket 24-1179). The U.S. Chamber of Commerce, NCTA, Wireless Infrastructure Association National Multifamily Housing Council, ACA Connects, Wireless ISP Association and several state telecom associations also noted that the major questions doctrine "confirms" the commission lacks "the authority to regulate non-ISPs" (see 2407080012). In a separate brief, the Legal Defense Fund, Asian Americans Advancing Justice, the American Civil Liberties Union, Communications Workers of America and the United Church of Christ Office of Communication said that the FCC would "fail to achieve Congress's mandate" of facilitating equal access without establishing a disparate-impact liability. Section 1754 of the Infrastructure Investment and Jobs Act "also furthers the FCC’s ability to ferret out intentional discrimination," the groups said.

Congressional GOP leaders demanded Thursday that the FCC and other independent agencies adhere strictly to its narrowed leeway of interpreting federal laws following the U.S. Supreme Court’s June Loper Bright Enterprises v. Raimondo decision and other recent rulings that rein in federal agencies (see 2407080039). House Commerce Committee Chair Cathy McMorris Rodgers of Washington and Oversight Committee Chairman James Comer of Kentucky pressed the FCC, FTC and Commerce Department to understand the “limitations” Loper “set on your authority” given it overruled the Chevron doctrine. Meanwhile, FCC Commissioner Brendan Carr pooh-poohed critics of Loper who argue it hamstrings regulatory agencies. Communications-focused lawyers at an Incompas event eyed a range of legal challenges to recent FCC actions that could face improved prospects because of Loper.

ISPs told the 6th U.S. Circuit Court of Appeals that the U.S. Supreme Court’s recent decision in two cases overturning the Chevron doctrine means the FCC’s net neutrality order must be stayed pending judicial review (see 2407010036). The FCC said Loper Bright Enterprises v. Raimondo and the other case had no implications for its order, which reclassified broadband as a Title II service under the Communications Act.

The Infrastructure Investment and Jobs Act (IIJA) explicitly requires that the FCC "regulate to achieve equal access to broadband" and "authorizes [the] FCC's disparate-impact rules," a consumer advocacy groups said in a joint filing Friday at the 8th U.S. Circuit Appeals Court (see 2401300089). In addition, the groups argued that the major questions doctrine didn't apply in this case.

Industry lawyers continue to assess the potentially seismic implications of Loper Bright Enterprises v. Raimondo and the other Chevron case decided last week (see 2406280043). Yet the after-effects are being seen already. The 6th U.S. Circuit Court of Appeals on Friday directed parties in the net neutrality challenge to file not later than July 8 supplemental briefing material addressing the effect of the Chevron decision “on our analysis” of a motion to stay the order (see 2406280060).