Obama Legal Vets: FCC Should Not Restore Net Neutrality Rules

Former U.S. solicitor general Donald Verrilli Jr.
Former U.S. solicitor general Donald B. Verrilli Jr. (Image credit: Drew Angerer/Getty Images)

Two former Obama-era solicitors general are arguing the FCC should not restore network neutrality rules eliminated under Republican chair Ajit Pai.

In a new paper co-written by Donald B. Verrilli Jr. and Ian Heath Gershengorn, the veteran legal minds get together to advise that the Federal Communications Commission does not have the authority to reclassify broadband access as a telecommunications service subject to common carrier regulations, specifically nondiscriminatory access regs and that the commission needs to let Congress weigh in.

Democratic FCC chair Jessica Rosenworcel now has a majority in support of restoring those rules, but Verrilli and Gershengorn say that would be the wrong way to go.

While they laud the goal of “enacting core open internet principles so that all consumers

can enjoy free and unimpeded access to lawful internet content of their choosing,” they said if the FCC tries to do so by reclassifying internet access, the Supreme Court will simply overrule it on the grounds that it lacks authority.

According to the “major questions” doctrine that would guide any Supreme Court decision, they say, the FCC would have “clear congressional authorization” and even Congress can't agree on what authority the regulator has under statute.

“Nothing in Title II of the Communications Act itself or in any other statute gives the Commission the clear and unambiguous authority to classify broadband as a Title II telecommunications service subject to common carrier regulation, and the Commission cannot reasonably conclude otherwise,” they wrote.

“Any attempt by the Commission to impose such broad regulatory requirements under current statutes would be struck down by the Supreme Court,” Verrilli and Gershengorn wrote. “And the contentious litigation leading to that inevitable result would waste countless resources for the government, industry, and the public, while distracting all parties from more promising efforts, such as obtaining congressional action to resolve these important issues.”

Given that, they said, the FCC “should not go down that path.”

Some could argue that regulating internet-service providers as some kind of online gatekeeper is fighting the last war, though ISPs would say they have never been the enemy when it comes to access to content.

Edge providers have taken over as the major target of Congress over the issue of the power of Big Tech to affect access to communications.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.