Net neutrality’s court fate depends on whether broadband is “telecommunications”

Enlarge / FCC Chairwoman Jessica Rosenworcel speaks during the US Chamber of Commerce's Global Aerospace Summit in Washington, DC, on Wednesday, Sept. 14, 2022. (credit: Getty Images | Bloomberg)

With the Federal Communications Commission preparing to reimpose net neutrality rules and common-carrier regulation on Internet service providers, the broadband industry is almost certain to sue the FCC once the decision is made.

The Democratic-majority FCC is expected to define broadband as a telecommunications service, which means it would face common-carrier regulations under Title II of the Communications Act. Industry trade groups that represent Internet service providers will likely argue, as they have unsuccessfully argued before, that the FCC does not have authority to classify broadband as a telecommunications service.

Federal appeals courts upheld previous FCC decisions on whether to apply common carrier rules to broadband, a fact that current agency officials point to in their plan to revive Obama-era regulation of ISPs under Title II. But some legal commentators claim the FCC is doomed to fail this time because of the Supreme Court's evolving approach on whether federal agencies can decide "major questions" without explicit instructions from Congress.