Net Neutrality's Court Fate Depends on Whether Broadband is 'Telecommunications'

As the FCC leans towards reinstating net neutrality and regulating ISPs under Title II, the broadband sector is set to challenge the move. Previously, courts have upheld FCC's decisions. However, legal experts believe the Supreme Court's current stance may hinder the FCC's authority to classify broadband as a telecommunications service. ArsTechnica: The major question here is whether the FCC has authority to decide that broadband is a telecommunications service, which is important because only telecommunications services can be regulated under Title II's common-carrier framework. "A Commission decision reclassifying broadband as a Title II telecommunications service will not survive a Supreme Court encounter with the major questions doctrine. It would be folly for the Commission and Congress to assume otherwise," two former Obama administration solicitors general, Donald Verrilli, Jr. and Ian Heath Gershengorn, argued in a white paper last month. According to Verrilli and Gershengorn, "There is every reason to think that a majority of the Supreme Court" would vote against the FCC. Verrilli and Gershengorn express their view with a striking level of certainty given how difficult it usually is to predict a Supreme Court outcome -- particularly in a case like this, where the agency decision isn't even finalized. While litigation in lower courts is to be expected, it's not even clear that the Supreme Court will take up the case at all. The certainty expressed by Verrilli and Gershengorn is less surprising when you consider that their white paper was funded by USTelecom and NCTA -- The Internet & Television Association, two broadband industry trade groups that sued the Obama-era FCC in a failed attempt to overturn the net neutrality rules. The groups -- which represent firms like AT&T, Verizon, Comcast, and Charter -- eventually got their way when then-FCC Chairman Ajit Pai led a repeal of the rules in 2017. But the industry-funded white paper has gotten plenty of attention, and the FCC is keenly aware of the so-called "major questions doctrine" that it describes. The FCC's Notice of Proposed Rulemaking (NPRM), which is pending a commission vote, will seek public comment on how the major questions doctrine might affect Title II regulation and net neutrality rules that would prohibit blocking, throttling, and paid prioritization.

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