Groups Tell 6th Circuit Title II Broadband Classification Is a Major Questions Violation

It's "astonishing that the FCC is once again seeking to impose heavy-handed regulation on internet access," TechFreedom and the Washington Legal Foundation told the 6th U.S. Circuit Court of Appeals Wednesday. The groups urged the court in an amicus brief Wednesday that it should reverse the commission's order restoring Title II classification of broadband (see 2408130001). Their brief said the "only question for this court" is whether the FCC has the statutory authority to act (docket 24-7000), arguing the order is a violation of the major questions doctrine.

The order triggers the doctrine in two ways, the groups' brief said. The first is that the order is "economically significant" because it "empowers the FCC to investigate and second-guess almost everything broadband providers do." The second is the order's political significance given the decade-long debate over Title II classification. The major questions doctrine "ensures that the people’s representatives in Congress [not the FCC] make all important policy decisions themselves."

"To reintroduce Title II regulation makes no sense," the groups said, calling the move a "backward-looking political grudge match, bureaucratic make-work and agency self-aggrandizement, and state control as an end in itself." Should the order go into effect, the groups warned that the FCC "could stifle innovation" through rate regulation and "generally regulate broadband firms as though each one were a monopoly."

The FCC "mistakes factors that can contribute to triggering the major questions rule for factors that are necessary for triggering the rule," the groups said. Broadband is "clearly a Title I service," they argued, and any "lingering doubt on the point is resolved by the fact that the FCC can't place broadband under Title II without needing, via forbearance, to all but rewrite the Communications Act." The groups called it a "gambit that raises serious constitutional problems."

The commission's claim that "a major question arises when the agency classifies broadband" as either a Title I or II service "has no bearing on this case," the groups argued: If broadband were "clearly a Title II service," the FCC wouldn't have needed to "abuse its forbearance power, ignoring so many core Title II requirements to practically write a new statute." They also warned that the intelligible principle test "might be on its last legs" as the U.S. Supreme Court is "poised to strengthen the nondelegation rule."