of President Joe Biden third attempt Installing Gigi Sohn at the Federal Communications Commission (FCC) increases the likelihood that the agency will attempt to reinstate Obama-era net neutrality rules. But even if Sohn is confirmed and the new FCC Democratic majority attempts to do so, the policy could end up in court.
Today’s Supreme Court is increasingly reluctant to defer to administrative agencies operating at the limits of their statutory authority, including West Virginia vs. EPA (2022), a precedent that could thwart Democrats’ net neutrality aspirations. Indeed, Sohn herself conceded it during her senate nomination hearing last week, citing instead a previous competitor of National Cable & Telecommunications Association v. Brand X (2005) to legitimize its political objectives.
Brand XThe implications for net neutrality are nuanced. The Court found that the relevant statute, the Telecommunications Act 1996, for being ambiguous and yielding to the FCC’s assessment that Internet Service Providers (ISPs) are not common carriers. At the time, it was a boon for opponents of net neutrality, because the FCC does not have the power to enforce net neutrality unless ISPs are classified as such. This result depended on Chevron deference, however, the judicial doctrine that judges should yield to bureaucrats’ interpretation of imprecise legislative language, established by Chevron USA Inc. v. Natural Resources Defense Council, Inc. (1984). Below Brand X precedent, if the FCC changes course and classifies ISPs as common carriers, which is Sohn’s goal, the Court must relent. In short, while Brand X saved ISPs from common carrier status for the time being, it bolstered a legal theory that could later doom them to the same fate.
However, while the Supreme Court is expected to overturn Chevronhe could nevertheless reaffirm Brand XThe company’s immediate conclusion — that ISPs are not common carriers under the Telecommunications Act. There are compelling arguments that the the technical operation of ISPs effectively excludes them from that status under any plausible interpretation of the law, arguments to which “the DC Circuit gave only passing attention due to Chevron and the watch the decision effect of Brand X“, according Daniel Lyons of the American Enterprise Institute.
To be regulated as common carriers, ISPs must be classified as “telecommunications” services rather than “information” services. “Telecommunications” services transmit material data “without modification of form or content,” the law says, while information services include “the provision of a capability to generate, acquire, store , transform, process, retrieve, use or make information available via telecommunications.” In short, if a company offers various services that manipulate data, it is not, by statute, a “telecommunications” service and is therefore immune to common carrier rules.
“Most broadband providers offer many services alongside data transport, such as web browsing, email and cloud storage, that meet one or more of the enhanced services identified in the legal definition,” explains Lyons. “The fact that consumers may purchase some of these services from third parties instead does not change the fact that ISPs ‘offer’ them – and ISPs bundle data transport with certain information services such as DNS lookup and caching that consumers can’t get elsewhere.”
Moreover, many typical common carrier regulations, written to control telephone services, “simply can’t apply to broadband providers,” continues Lyons. The FCC dodged the obvious conclusion – that broadband providers should not be considered common carriers – by exempting broadband from the myriad of unfit requirements.
So, Brand XThe legal reasoning of , but not its regulatory impact, should be overturned.
Clarence Thomas, the only remaining judge of Brand Xreversed his vote and urged his colleagues to reconsider the 2005 majority vote Chevron-founded conclusions. If Thomas manages to muster a majority to explicitly renounce Chevron is unclear, but the Court has, in recent years, paralyzed the doctrine by ignore he.
“Although I wrote Brand X“it’s never too late to ‘abandon previous opinions to a more considered position'”, Thomas writing in 2020. “Brand X seems inconsistent with the Constitution, the Administrative Procedure Act (APA) and traditional tools of statutory interpretation. »