D.C. Memo: ISPs Fight FCC's Net Neutrality 'Power Grab' in Sixth Circuit
D.C. Memo: ISPs Fight FCC's Net Neutrality 'Power Grab' in Sixth Circuit
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Net Neutrality: Under a tight deadline, ISP trade groups filed a brief last night continuing their attack on FCC Chairwoman Jessica Rosenworcel's Net Neutrality rules as an unlawful "power grab." The rules, adopted in April, were stayed by a panel of the U.S. Court of Appeals for the Sixth Circuit on Aug. 1, just four days from taking effect. Echoing the panel's key conclusion, the ISPs said the FCC's rules flouted the Supreme Court's Major Questions Doctrine, which required the FCC to have clear authorization from Congress to treat ISPs as utility-style common carriers under Title II of the Communications Act. "Congress did not empower the FCC to regulate ISPs like public utilities," the ISPs said in their 99-page brief. In imposing the stay, a three-judge panel of Sixth Circuit concluded that ISPs were likely "to succeed on the merits because the final rule implicates a major question, and the FCC has failed to satisfy the high bar for imposing such regulations.” The Major Questions Doctrine is typically applied to regulations of vast economic and political significance. The ISPs said their sector has about $150 billion in annual revenue and Congress has been debating their regulatory status for many years, confirming the FCC never had a clear statement from Congress to impose common carrier controls. "Subjecting broadband to public-utility-style regulation under Title II is a quintessential major question," the ISPs said. "The FCC has repeatedly argued that the major-questions doctrine does not apply, but it misunderstands the doctrine." Finally, in stripping ISPs of their status as unregulated information service providers, the FCC has made "a mess of the structure of the Communications Act, and set the stage for serious First Amendment concerns," the ISPs said. Oral arguments have been scheduled for the week of October 28-November 1, 2024.
