Net Neutrality Goes Down in Court

The Sixth Circuit blocks the overreaching FCC rule, citing the Supreme Court’s major questions doctrine

WSJ editorial.

"The Biden regulatory blitz continues, but courts are beginning to do their job to stop the biggest legal overreaches. A Sixth Circuit Court of Appeals panel last week blocked the Federal Communications Commission’s net neutrality rule, citing the Supreme Court’s major questions doctrine. Welcome to the post-Chevron world.

Democrats on the FCC this spring reclassified broadband providers as common carriers under Title II of the 1934 Communications Act. This let the commission regulate broadband rates and impose “non-discrimination obligations.” The Biden FCC wants to impose political control over the internet.

But as the three-judge Sixth Circuit panel explains in an unsigned order, the law doesn’t let the FCC regulate broadband providers as common carriers. The D.C. Circuit Court of Appeals upheld the Obama FCC’s Title II rule in 2016 under the Chevron doctrine, which required judges to refer to regulators’ interpretations of laws if they are “reasonable.”

The High Court tossed Chevron this summer, in a long-overdue ruling that restored the job of judges to assess if regulators have exceeded their statutory power. Critics, including the Court’s liberals, said lower courts would struggle to review regulations in a post-Chevron world. Not the Sixth Circuit. Two of the three reviewing panel’s judges are Democratic appointees, one of whom was elevated by President Biden. The other is Chief Judge Jeffrey Sutton, appointed by George W. Bush.

As the panel explains, the Telecommunications Act of 1996 “created a new category of ‘information service’” providers separate from common carriers. The panel also cites the Supreme Court’s major questions doctrine, which requires Congress to clearly authorize significant administrative actions.

“An agency may issue regulations only to the extent that Congress permits it,” the panel writes. “The more an agency asks of a statute, in short, the more it must show in the statute to support its rule.” The FCC pointed to a catch-all in the 1934 law that lets it “prescribe such rules and regulations as may be necessary in the public interest” to implement Title II.

“But such general or ‘ancillary’ authority to fill gaps in Congress’s regulatory scheme does not suffice to show that Congress clearly delegated authority to resolve a major question like this one,” the panel writes. In the Chevron world, judges routinely deferred to administrative agencies when regulators sought to fill in such “gaps.”

The Justices have put lower courts and administrative agencies on notice that they cannot read between a law’s lines to implement policy without clear Congressional command. Will the White House hear the Court now?"