Title II Fight Heads to Supreme Court

Today, the D.C. Circuit Court of Appeals denied rehearing of last year’s 3-judge panel decision upholding the FCC’s 2015 Open Internet Order. This 109-page decision clears the way for TechFreedom and other parties challenging the Order to take their case to the Supreme Court. Just as Senior Judge Williams (69 pages) dissented vociferously from the panel decision, Judges Brown (47 pages) and Kavanaugh (33 pages) wrote lengthy dissents blasting the FCC’s claims of its legal authority and arguing that the full appeals court should rehear the panel decision.

We expected this ruling from the D.C. Circuit, which shifted dramatically in favor of deference to agency power under the previous administration,” said Berin Szóka, President of TechFreedom, the only Intervenor in the case, representing a number of Silicon Valley entrepreneurs and VoIP innovators whose services were banned by the FCC’s Open Internet Order.

We’re gratified to see that both dissenting judges focused on the argument made by TechFreedom alone: that the FCC’s power over the Internet is a ‘major question’ on which courts ought not grant normal Chevron deference to the agency. We look forward to taking that question to the Supreme Court — and untangling the complicated technical and legal distinctions that the majority of the appeals court misunderstood.”

We’ve always thought of this as a question for the Supreme Court to resolve,” continued Szóka. “Justice Gorsuch has, like Justice Thomas, been clear in his view that Chevron is purely judge-made doctrine that violates both the Constitution and the plain text of the Administrative Procedure Act. But we don’t need to kill Chevron to win in this case — merely persuade five Justices that it should not apply, and that the FCC has overstepped the authority granted by Congress. Several Justices across the political spectrum have declined to apply Chevron on ‘major questions’ like this one. Chief Justice Roberts upheld Obamacare despite finding that Chevron did not apply. And all four Justices on the left joined in the part of the Court’s 2014 decision in Utility Air Regulatory Group striking down the EPA’s attempt to effectively rewrite its statute. Another trans-ideological coalition could well block the FCC’s overreach.”

“We hope the Court will grant cert in this case when it reconvenes in early October after its summer recess,” concluded Szóka. “If the high court takes the case, Chairman Pai should allow the Justices to resolve critical questions about the FCC’s authority. We’ve always supported legislation to resolve the ‘net neutrality’ fight but a Supreme Court ruling may be the only way to motivate Democrats to negotiate after two years of rebuffing Republican offers to compromise. If the FCC doesn’t let the Supreme Court have its say (by next spring), there’s a serious risk that no legislation will pass after the FCC hands broadband back to the FTC and states. The next Democratic FCC would re-reclassify broadband under Title II, and we’d wind up exactly where we are now — two to three years into the next Democratic Administration. We can’t afford to keep playing policy ping pong with the Internet until then.”

Today’s decision focused on Title II, and, unsurprisingly, did not address whether Section 706 confers any independent regulatory authority on the FCC. The Supreme Court could take up both questions.

TechFreedom was joined by co-Intervenors Cari.Net, Jeff Pulver, Scott Banister, Charles Giancarlo, Wendell Brown and David Frankely. Collectively, they are represented by the law firm of Boyden Gray & Associates. Led by C. Boyden Gray, White House Counsel to President George H.W. Bush, this boutique law firm has litigated several of the most important cases about the separation of powers between Congress and the administrative state.


We can be reached for comment at media@techfreedom.org. See our other work on net neutrality, including:

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