D.C. Memo: ISPs, FCC Duel before Sixth Circuit Ahead of Key Aug. 5 Deadline
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Net Neutrality: ISPs claimed the FCC lacked authority to adopt regulations that treated them like utilities, requiring the federal judiciary to block the rules from going into effect next month. Many of the largest ISPs in the country, joined by hundreds of local providers, have challenged the FCC’s Net Neutrality rules in federal court, the latest chapter in a saga that began more than two decades ago. In the current struggle, the ISPs said the FCC’s regulations adopted in April ran afoul of the Supreme Court’s Major Questions Doctrine, which prevents the FCC from adopting rules with vast economic and political significance without clear authorization from Congress. “The FCC’s decision to treat the $150 billion broadband industry as a public utility is a question of vast economic and political significance,” the ISPs said in a brief Friday night with the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. The court is expected to decide whether it will block the rules by Aug. 5. In its own brief Friday, FCC lawyers said the MQD did not apply because the Supreme Court in a 2005 case called Brand X said the agency had authority to classify ISPs, whether as common carriers or lightly regulated information service providers. “Brand X’s holding that the Communications Act gives the FCC authority to classify and regulate broadband service forecloses [ISPs’] arguments that the major-questions doctrine deprives the agency of that authority,” FCC lawyers said.
