Ferris Bueller famously said: “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.”
The same could be said for the Federal Communications Commission’s (FCC) latest effort to regulate broadband providers under Title II of the Communications Act, under what is commonly referred to as “net neutrality.”
On the same day (June 28) that the U.S. Supreme Court issued its Loper Bright decision, the 6th U.S. Circuit Court of Appeals ordered the parties in the net-neutrality lawsuit to brief the court on the decision’s relevance to whether the court should stay the FCC order. In a unanimous ruling last week, the circuit court stayed the Title II rules. The court’s order also scheduled a fairly quick briefing schedule and hearing timeline, with oral arguments set for the end of October.
In granting the stay, the court found that the petitioners—broadband providers challenging the rules—are likely to succeed on the merits, as the FCC’s rules implicate a “major question” requiring clear congressional authorization, which the court determined is likely lacking in this case.
In other words, the court views Title II regulation of broadband as an issue of vast economic and political significance that Congress has not clearly delegated authority to the FCC to resolve via reclassification of broadband from a Title I information service to a Title II telecommunications service. The court also found that granting a stay was appropriate because of the “possibility of irreparable injury” to the petitioners, including:
- Delays in product rollouts;
- Disadvantages in negotiating agreements; and
- Unrecoverable compliance costs.
In its order, the court rejected several of the FCC’s arguments defending its authority. It found that the Supreme Court’s Brand X decision did not preclude applying the major-questions doctrine; that the general rulemaking authority granted to the FCC was insufficient to resolve this major question; and that other provisions mentioning broadband did not clearly authorize treating all broadband providers as common carriers.
In his concurring opinion, Chief Judge Sutton seemed highly skeptical of FCC’s claim that it should be accorded Skidmore deference for its expert judgment on matters related Title I vs. Title II classification, writing:
The Commission next invokes Skidmore, asking us to give credence to the agency’s expert judgment over the technical questions implicated by this case. An agency’s power to persuade turns on the thoroughness of its reasoning, its technical expertise, and its “consistency with earlier and later pronouncements,” especially those contemporaneous with the statute’s enactment. The problem is, we do not know which group of experts to respect. Most of them since the passage of the 1996 Act have reasoned that broadband and similar services come under Title I, not Title II’s coverage of common carriers. The contemporaneous interpretation of the Act, the one in place for nearly two decades, refused to treat broadband internet access services as the offering of telecommunication services. In just three of the Act’s twenty-eight years has the agency taken its current position that broadband internet access service qualifies as a telecommunications service as opposed to an information service. The consistency query makes matters worse. The Commission’s “intention to reverse course for yet a fourth time” suggests that its reasoning has more to do with changing presidential administrations than with arriving at the true and durable “meaning of the law.” In truth, the Skidmore factors, the doctrine’s “power to persuade, if lacking the power to control,” all favor the Commission’s first interpretation, not its recent one. [citations omitted]
While this order is not an opinion on the merits, it does suggest that the FCC will struggle to justify its Title II/net-neutrality rules, as well as its digital-discrimination rules. Life moves pretty fast, and apparently so does the 6th Circuit.
