In a legal setback for the Federal Communication Commission, the U.S. Sixth Circuit Court of Appeals announced last month that it would temporarily block the Commission’s highly controversial net neutrality rule, which imposes utility-style regulations on the internet and requires service providers to treat different types of data the same.
Even before the Commission voted to restore the rule in April, there were serious questions about whether it would pass legal muster. In a paper published late last year, former Obama attorneys Donald B. Verrilli Jr. and Ian Heath Gershengorn argued that any unilateral attempt by the Commission to treat broadband internet access service (BIAS) as a common carrier service under Title II of the Communications Act of 1934 would be a “wasted effort.”
That is because it would likely run afoul of the major questions doctrine, which stipulates that agencies must be able to point to clear congressional authorization on matters of “vast economic and political significance” to legally make decisions.
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Nate Scherer is a policy analyst with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit us at www.TheAmericanConsumer.Org or follow us on X @ConsumerPal.