Earlier this year, the Federal Communications Commission (FCC) reclassified broadband as a common carrier service subject to Title II requirements originally designed to discipline the landline telephone system. By doing so, the agency reversed a 2018 decision that determined broadband was better classified as a Title I information service—a decision that itself overturned a 2015 Title II order, which had in turn reversed earlier Title I proclamations. But on August 1, the Sixth Circuit stayed this latest swing of the regulatory pendulum. The court suggested that the FCC likely exceeded its authority because the proper regulatory treatment was a major question that should be decided not by the agency, but by Congress.
The decision relies primarily on the Major Questions Doctrine. This is a judicial doctrine developed over the past quarter-century in response to agencies purporting to discover broad regulatory authority in ambiguous, often old statutory language. The Major Questions Doctrine presumes that Congress, not agencies, should ordinarily resolve questions of “vast economic and political significance.” It recognizes that sometimes the legislature may choose to delegate this authority to an agency. But for an agency to claim authority to decide a major question, it must show Congress has clearly allowed it to do so, not merely that some stray statutory language might suggest it. As the Supreme Court has explained, courts presume the legislature “does not…hide elephants in mouseholes.”
I and many others have long argued that net neutrality presents a major question. Broadband access is economically significant, as reflected not just by the importance of the internet economy to everyday life, but also the billions of dollars that the government has spent on access subsidies. And the millions of comments filed in each subsequent FCC proceeding testify to the political significance of the topic.
Given these facts, the court is likely correct that this is a major question upon which Congress has not clearly spoken. When Congress adopted the Telecommunications Act in 1996, only about half of Americans had internet access, and most of those were through dial-up. The Act focused primarily on how to manufacture competition among local landline telephone companies—remember those?—a mission that has long been obsolete to most consumers. The Act only makes a few passing references to the Internet at all, mostly involving a provision regulating of online pornography that the Supreme Court struck down as unconstitutional, and Section 230, which among other things states Congress’s policy “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
But given recent Supreme Court developments, it’s unclear what role the Major Questions Doctrine continues to play in administrative law. Most (including me) would argue that this doctrine developed in response to Chevron, a judicial doctrine that generally required courts to defer to reasonable agency interpretations of statutory ambiguity, even if the court did not believe the agency’s interpretation was the best interpretation. This doctrine allowed presidents to do an end run around Congress by pushing policy initiatives through agencies using loose or unclear statutory language—an approach that President Obama called his “pen and phone” strategy. The Major Questions Doctrine crystallized as a way to curb the abuse of Chevron in extraordinary cases such as healthcare regulation and climate change policy, thus preserving Congress’s role when regulating these issues. In June, however, the Supreme Court repealed Chevron and requires courts, not agencies, to interpret most statutory questions de novo, whether they implicate a major question or not.
Given this development, it’s unclear what role the Major Questions Doctrine’s clear statement rule will play going forward. If it does not apply, the Sixth Circuit must decide itself whether broadband fits better in Title I or Title II. The Court allows some deference to the agency’s expertise to the extent its views are well-considered and consistent, but as the Sixth Circuit notes, that deference is minimal when, as here, the agency has repeatedly changed its mind with the political winds. In a concurrence, Judge Sutton explained that independently of the major questions issue, the best reading of the statute would place broadband under Title I, not Title II. I agree, although I recognize that other courts have suggested otherwise in prior net neutrality litigation.
The Sixth Circuit’s stay does not resolve the case. The court simply held that the challengers are likely to win their challenge, and therefore delayed implementation of the rules until the case was resolved. But Round 1 definitely goes against the agency. And advocates should heed the court’s broader message: the regulatory treatment of broadband shouldn’t be decided at the agency or in court. It’s long past time for Congress to act.
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