Court Considering Whether to Extend Stay on FCC’s New Internet Regulation

July 22 was to be the date on which the FCC's new public utility rules for broadband Internet access services were to go into effect. But on July 15, the Sixth Circuit Court of Appeals issued an administrative stay order in the case of In re: MCP No. 185, postponing the effective date until at least August 5. The Sixth Circuit apparently is considering whether a further stay of the Commission’s new Internet regulation is warranted under the Major Questions Doctrine. In its July 15 order, the court invited supplemental briefings from broadband Internet service providers and the Commission regarding stare decisis and the court’s decision in 2005 NCTA v. Brand X Services. 

Pursuant to a June 28 order by the court, the parties filed briefings to the court regarding the legal authority of the Commission’s new Title II order in light of the Supreme Court’s June 28, 2024, decision in Loper Bright Enterprises v. Raimondo. In Loper Bright, the Supreme Court overruled its 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

The Free State Foundation filed comments and reply comments in the FCC’s Safeguarding and Securing the Open Internet proceeding. Those comments explained why the Commission lacked authority to impose public utility regulation on broadband Internet access services under the Supreme Court’s Major Questions Doctrine. In short, the new Title II order was a major rule of political and economic significance, and Congress never provided the agency with a clear statement of authority to impose such sweeping restrictions on private broadband networks. In April of this year, shortly before the order’s release, I wrote a follow-up, “The FCC’s Internet Regulation Plan Fails the Major Questions Doctrine.”

 

In its legal briefings filed with the Sixth Circuit, the FCC argues that it has not expressly relied on Chevron in adopting its new Title II order but on its inherent statutory authority and the Brand X. But a relevant short passage from FSF’s comments anticipated the agency’s position in the pending litigation:  

The Commission appears to put some hope in the D.C. Circuit’s determination in its 2016 decision in US Telecom v. FCC that Brand X conclusively gave the Commission the authority to determine the proper classification of Internet access service, that the agency’s determinations involved matters of statutory ambiguity and were entitled to deference, and that there was no need to consult the Major Questions Doctrine. But the D.C. Circuit’s determination predated the emergence of the Major Questions Doctrine in Supreme Court

jurisprudence as well as the eclipse of Chevron deference, and the appeals court’s decision now appears to be inconsistent with current jurisprudence.

FSF’s comments were filed in December 2023, months before the Supreme Court’s decision was issued in Loper Bright Enterprises v. Raimondo. Even if the agency did not rely on the now-overruled Chevron Doctrine as purported legal authority for its new Title II order, the Major Questions Doctrine still poses an insuperable obstacle to the order’s legal validity. 

 

It is reported that the Sixth Circuit panel is expected to issues a decision on or before August 5 on whether to issue a stay on the rules pending a decision on the merits.

 

Free State Foundation President Randolph May wrote about the Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo in a Perspectives from FSF Scholars published on July 2, “Chevron’s Demise Curbs Agency Power, Boosts Congress’s.” Today, July 23, RealClearMarkets published Mr. May's op-ed, "Chevron's Demise Re-Aligns Administrative State With Founders' Vision." Expect FSF Scholars to have more to say about the long-awaited judicial overturn of the Chevron Doctrine and its implications for future FCC activity as well for the chronically overreaching administrative regulatory state.