Net neutrality, the concept of treating all internet traffic equally, was a regulation first introduced under President Barack Obama’s Federal Communications Commission, with the agency later dismantling it under President Donald Trump. But it’s two of Obama’s top lawyers are now saying it would be a mistake for the FCC to attempt to bring it back.
The seemingly contradictory sentiment makes sense when you read the Bloomberg Law op-ed by former Solicitor General Donald Verrilli Jr. and former acting Solicitor General Ian Heath Gershengorn, who argue that any attempt by the FCC to bring back Obama-era regulations that treat ISPs like water, gas and electricity companies will be knocked back by the conservative-leaning Supreme Court.
“The US Supreme Court has made crystal clear, as recently as this June when it struck down President Joe Biden’s student loan forgiveness program, that it will invalidate federal agency regulations on matters of major economic and political significance—what the court refers to as ‘major questions’—unless Congress has given the agency specific, unambiguous authority to regulate on the subject,” the op-ed read. “One might think—as we do—that the ‘major questions doctrine’ is wrong, and that federal agencies should have relatively broad discretion to use existing statutes to address new challenges. But there’s no denying that the Supreme Court views things differently.”
The op-ed comes weeks after Congress finally approved the fifth and final commissioner for the agency, giving the FCC a 3-2 Democratic majority and the ability to pursue President Joe Biden’s mandates. For the vast majority of Biden’s first term, the FCC was deadlocked with two Democrats and two Republicans, allowing it to only pursue bi-partisan issues like fighting robocalls or closing the digital divide. Net neutrality was expected to be an issue that the FCC would pursue after Biden urged the agency to do so back in 2021, although it’s unclear if it’ll make the docket in time with most of Washington focused on re-elections going into 2024.
An FCC spokesman couldn’t immediately be reached for comment.
Net neutrality, despite its popularity with the public, is a partisan issue, with Democrats, technology companies and consumer advocates historically supporting more regulations, and Republicans and the broadband industry, including cable and telecom providers, opposing them. The rules would give the FCC more authority over the internet service providers, preventing them from prioritizing traffic from companies that pay more, or slowing down traffic from competitive services. The ISPs argue the rules are too onerous and would hurt innovation.
While neither Verrilli Jr. or Gershengorn oppose net neutrality — in the op-ed, they call pursuing the regulations laudable — they recognize the reality that the rules wouldn’t survive legal scrutiny under the current regime.
When the FCC under Obama passed net neutrality in 2015, it immediately triggered a challenge by the internet service providers. The rules survived a challenge from the U.S. Court of Appeals, which reaffirmed a lower court’s decision to preserve the FCC’s authority. The Supreme Court at the time also rejected a request to review the law. It was only after Republican FCC Chairman Ajit Pai took over under Trump that the regulation was repealed, and that act was also challenged in court.
As the two former Obama lawyers pointed out, the current Supreme Court has a dramatically different take on regulations. The political makeup of the Supreme Court has dramatically shifted right after Trump appointed three justices during his term, the most of any since President Ronald Reagan.
They called the “major questions doctrine” a buzzsaw that would tear apart any regulations from a federal agency that didn’t have clear direction from Congress.
While the FCC could make the effort, the two argued that the massive expense and resources that go into pushing a massive regulation like net neutrality and dealing with the legal ramification may not be worth it.
“And, if past is prologue, years of costly litigation will follow. And for what? Just so the Supreme Court can confirm what is already apparent: The Commission lacks authority to act,” they said.