FCC move to impose utility-style regulation on broadband providers vulnerable to legal challenge – CEI paper

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The Federal Communications Commission (FCC) is expected to vote Thursday to impose utility-style regulation on broadband internet access providers under Title II of the Communications Act. The move would alter the current light touch regulatory approach to utility-style regulation that could subject providers to rate regulation, government dictated terms of service, and agency determined returns on capital investment.

In "Major Questions on Net Neutrality: A primer on the FCC's brewing broadband legal fight" published today by the Competitive Enterprise Institute (CEI), Adjunct Fellow Brian A. Rankin writes that the FCC's move to impose Title II regulation is likely to raise a serious legal challenge under the Major Questions Doctrine. Developed by Supreme Court precedent, the Major Questions Doctrine holds that for questions of vast economic and political significance, a federal administrative agency must have clear congressional authority for any regulatory power it asserts. Absent clear congressional authorization, the agency lacks authority because Congress retains the power to make those determinations.

The FCC's imposition of heavy-handed regulation coupled with the ambiguous language in the Communications Act of 1934 and Congress' record of refusing to classify broadband internet access as a telecommunications service likely indicates there is no clear congressional authorization for such a move.

"While it has taken decades and multiple FCC orders and appeals to get to this point, the Major Questions Doctrine may once and for all resolve the question of broadband's regulatory treatment," said Rankin. "It's been a long time coming and would be a victory for the separation of powers principle that Congress makes decisions of vast economic and political significance rather than unelected agencies."

Read the full report on CEI.org.