Supreme Court looms over Biden’s net neutrality push for FCC.
The Battle for Net Neutrality: Supreme Court Scrutiny Looms
The Federal Communications Commission’s (FCC) efforts to restore net neutrality, a crucial internet policy, are facing a formidable obstacle in the form of Supreme Court examination, according to critics. Under the leadership of Chairwoman Jessica Rosenworcel, the FCC unveiled a new proposal that seeks to reclassify internet service providers (ISPs) under Title II of the Communications Act. This move would subject ISPs to stricter regulations, preventing them from discriminating against or throttling content from different websites.
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However, a Republican FCC commissioner and two former Obama solicitor generals argue that the Supreme Court would strike down these rules if the commission proceeds with them. In a white paper published recently, former Obama Solicitor Generals Donald Verrilli and Ian Gershengorn assert that the FCC’s attempt to reinstate Obama-era net neutrality rules would be a “massive waste of resources” and divert attention from more pressing policy goals, such as ensuring widespread access to robust broadband service for all Americans.
The white paper concludes that the current conservative-controlled Supreme Court, with a 6-3 majority, would invalidate net neutrality rules. Verrilli and Gershengorn base their argument on the 2021 West Virginia v. EPA ruling, where the Supreme Court determined that the Environmental Protection Agency had exceeded its authority in regulating emissions. They contend that the FCC’s push to reclassify ISPs would also fall under the “major questions” doctrine, which states that Congress does not delegate matters of significant economic or political importance to federal agencies.
FCC Commissioner Brendan Carr, a Republican who opposes the agency’s use of power to reclassify ISPs, has taken note of Verrilli and Gershengorn’s arguments. In a statement, Carr asserts that instead of pursuing Title II reclassification, the FCC should concentrate on advancing other important policies within its authority. Carr previously stated during a reconfirmation hearing that the FCC lacks congressional authorization to implement net neutrality.
Net neutrality advocates highlight that the Verrilli-Gershengorn white paper is supported by USTelecom and the Internet and Television Association, two lobbying groups representing the telecommunications industry. These groups also contributed to a campaign aimed at tarnishing the reputation of former FCC nominee and net neutrality advocate Gigi Sohn.
Furthermore, proponents of the rule emphasize that the FCC has extensively addressed net neutrality in the past. Stephanie Joyce, Senior Vice President of the Computer & Communications Industry Association, points out that the FCC has been engaged in discussions and rulings on net neutrality since 2010. Notably, the D.C. Circuit Court upheld the FCC’s net neutrality rules in 2016, a decision that was later affirmed by the Supreme Court in 2018, despite the efforts of FCC Chairman Ajit Pai to reverse the Obama-era rules in 2017.
Harold Feld, Senior Vice President of the left-leaning advocacy group Public Knowledge, argues that while Justice Brett Kavanaugh has shown opposition to net neutrality in previous rulings, it is uncertain whether his conservative colleagues will share his stance. Feld highlights a divergence of opinion between Chief Justice John Roberts and Kavanaugh regarding the major questions doctrine. Roberts suggests that the doctrine should only apply in “extraordinary cases” involving “extraordinary power” wielded by agencies, while Kavanaugh implies that the doctrine could arise whenever an agency applies an established rule for the first time.
According to FCC alumni, the finalization of the FCC’s rule is not expected until at least the end of 2024. Subsequently, the rule would need to be challenged in court and navigate through the district and appeals process before the Supreme Court could consider hearing the case. This entire process could span several years.
How do supporters of net neutrality justify their position and what specific concerns do they have regarding ISPs prioritizing certain websites or charging additional fees for faster access?
Ncurrent authority to regulate ISPs under Title II and that any attempt to do so would likely be overturned by the Supreme Court. He further emphasizes that the focus should be on expanding broadband access and promoting competition among ISPs.
The battle for net neutrality has been ongoing for years, with supporters arguing that it is essential to ensure a level playing field on the internet. They believe that without net neutrality, ISPs could prioritize certain websites or charge additional fees for faster access, effectively creating a tiered internet. This, they argue, would stifle innovation and limit the free flow of information and ideas.
Opponents of net neutrality regulations, on the other hand, contend that such regulations are unnecessary and hinder investment and innovation in the broadband industry. They argue that ISPs should have the freedom to manage their networks and offer different service tiers based on consumer demand.
The debate over net neutrality reached its peak in 2015 when the FCC, under the Obama administration, reclassified ISPs as common carriers under Title II of the Communications Act. This move was met with fierce opposition from ISPs and their allies, who argued that it imposed unnecessary and burdensome regulations on the industry.
In 2017, under the Trump administration, the FCC repealed the net neutrality regulations put in place by the Obama-era FCC. This decision was met with widespread criticism and sparked numerous legal challenges. Since then, states have taken matters into their own hands, with several enacting their own net neutrality laws.
Now, as the FCC attempts to restore net neutrality, the Supreme Court’s scrutiny looms large. Critics argue that the conservative majority on the Supreme Court would likely strike down any attempt to reclassify ISPs under Title II. They cite the recent West Virginia v. EPA ruling as a precedent for the Court’s inclination to limit the authority of federal agencies.
Supporters of net neutrality remain hopeful that the Supreme Court will uphold the FCC’s proposal and ensure a free and open internet. They argue that the Court should consider the importance of net neutrality in promoting competition, protecting consumers, and safeguarding freedom of speech.
The battle for net neutrality is far from over, and the Supreme Court’s decision will undoubtedly have far-reaching implications for the future of internet regulation. As the case makes its way through the judicial system, all eyes will be on the Court to see how it decides this crucial issue.
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