FCC, Consumer Groups Defend Title II Broadband Classification

The FCC defended its decision to reclassify broadband as a Title II telecom service under the Communications Act in a reply brief to the 6th U.S. Circuit Court of Appeals Wednesday (docket 24-7000). It argued the court's decision staying the order pending review was done "without showing adequate statutory support." Moreover, the motions panel lacked "the benefit of the full briefing presented here" (see 2408130001).

Industry groups' invocation of the major questions doctrine "offers no basis to disregard or countermand what Congress provided in the statute," the FCC said. The "most natural reading of the text of the Act" is that "broadband offers telecommunications service," the commission said. There's "nothing remarkable about the FCC regulating communications services in accordance with the Act."

"The only question here is whether broadband falls within" the statutory definition of a telecom service under Title II, the FCC said: "Based on the record, the commission found that it does, and the major-questions doctrine presents no basis to hold otherwise." Petitioners "look to the order’s economic impact, but economic impact alone has never meant that agency action is a transformative and unheralded expansion of the agency’s legal authority," the commission said: "Petitioners’ claims are in any event exaggerated and unsubstantiated."

The FCC argued that broadband can't "comfortably fit" the statutory definition of an information service because it "offers access to websites and applications that offer information-processing functions, but it does not itself offer those functions." It also defended its decision to classify mobile broadband as a commercial mobile service because the internet "has become an interconnected part of the public switched network" and isn't "in any sense a private mobile service."

In a joint amicus brief filed Wednesday, Free Press, New America's Open Technology Institute, Public Knowledge, Benton Institute for Broadband & Society and the National Association of Regulatory Utility Commissioners defended the FCC's decision. The groups agreed oral argument was necessary.

Supporting the FCC, the groups argued the major questions doctrine doesn't apply and "even if it did, it would not require invalidation of the order." The major questions doctrine "applies in extraordinary cases where there are compelling reasons to believe Congress would not have intended to authorize an agency's actions," they said, citing the U.S. Supreme Court's analysis of the FCC's classification decision in Brand X (see 2407220044).

The groups also noted that the proper classification of broadband isn't a major question because the statute "clearly charges the FCC with making the classification decision by applying a statutory definition that Congress created." Petitioners don't dispute whether broadband should be subject to regulation, the groups said, but instead how it should be regulated. Congress "unambiguously delegated to the FCC the authority to determine" whether broadband "has the features that qualify it" as a telecom service as defined in the statute.