The new Republican claim that the FCC can’t reinstate net neutrality is wrong—but it might still work

In 2017, the Trump administration worked closely with the telecom industry to strip away popular net neutrality rules protecting consumers from the profit-motivated whims of broadband monopolies. The decision was hugely controversial, in part because the telecom industry faked support by using dead Americans to pretend the decision was what actual, living citizens wanted.

More than five years later and the quest to restore net neutrality continues to face a steep, uphill climb. That’s in part due to a protracted industry smear campaign designed to stall the appointment of popular reformer Gigi Sohn to the Federal Communications Commission (FCC). 

On Tuesday, President Joe Biden’s nominee faced repeated attacks by congressional lawmakers eager to scuttle her nomination and keep the agency without the majority needed to do anything deemed remotely controversial.

At the hearing, Sohn’s third since her nomination, Republicans found a new line of attack. That the right-leaning Supreme Court had already neutered the FCC and Sohn’s belief in restoring net neutrality would be downright illegal.

The argument put forth, primarily by Sen. Eric Schmitt (R-Mo.), doesn’t carry weight, according to a number of legal experts. But the combined effort—despite Democrats having the clear majority in the Senate needed to muscle her through—may have been effective and put Sohn’s position on the FCC in peril. 

While the GOP is uniformly opposed to Sohn’s appointment, a source familiar with the process indicates that key Democrats—specifically Sens. Catherine Cortez-Masto (D-Nev.), Mark Kelly (D-Ariz.), and Joe Manchin (D-W.V.)—continue to prevent Sohn from getting the 51-vote Senate majority needed for confirmation to the agency. 

A source familiar with the nomination process told the Daily Dot that 15 straight months of baseless attacks seeded in the press by News Corporation, AT&T, and Comcast are having their intended effect on key Democratic senators and committee members, who continue to waffle on advancing Sohn’s nomination to a Senate floor vote.

Should Sohn’s nomination be scuttled, her replacement will likely be far friendlier to industry interests and may be swayed by the conservative argument that the FCC can’t actually do anything. 

Even if a slightly more palatable reformer is put in place, whoever is finally seated will have a very limited window of opportunity before the next presidential election potentially hands control of the agency back to a Republican party that’s fiercely loyal to some of the least-liked companies in America. 

Even if net neutrality is restored, years of additional legal wrangling is likely waiting in the wings, based on the Republican tack against Sohn.

During the hearing, Schmitt proclaimed that a recent EPA ruling would prohibit the FCC from restoring hugely popular net neutrality rules and that Sohn and the FCC would be running afoul of the Supreme Court and Congress if they tried to do so anyway. 

But industry lawyers and Sohn alike say that’s wishful thinking by Republicans.

“I believe the FCC can and has the authority to act, it doesn’t mean it won’t be challenged and the West Virginia case is going to be a challenge for net neutrality rules,” Sohn said.

The case in question, West Virginia v. The Environmental Protection Agency (EPA), declared that the environmental regulator could not implement state-level caps on carbon emissions under the 1970 Clean Air Act without the explicit approval of Congress. It was a stark reversal from a prior 2007 Supreme Court ruling and a painful blow to environmental reforms. 

Chief Justice John Roberts’ decision in the EPA case focused on the “major questions doctrine,” which Roberts stated required “clear congressional authorization” when agencies regulate issues of great “economic and political significance.”

The problem: The court ruling was so nebulous about what specifically constitutes a “major question,” court watchers quickly began to worry that this vague interpretation was intentionally crafted to be abused down the road to derail any and all regulatory efforts opposed by U.S. industry using errant hand-waving and pseudo-legalese.

For years, industry and the right wing have dreamed of dismantling the U.S. regulatory state, freeing American corporations from consistent and meaningful government oversight. While often framed as a populist reform, such a shift would effectively give carte blanche to U.S. monopolies and polluters to behave with impunity.

U.S. regulatory agencies, like the FCC and EPA, have varying degrees of rulemaking authority laid out by Congress, which historically has deferred to individual agencies’ subject matter expertise. 

But with Congress increasingly under lobbying assault by coalitions of deep-pocketed corporations, it’s often impossible to expand regulator authority or implement reforms, like net neutrality, which was beset by attacks from the moment it was implemented by the Obama-era FCC. 

And as the U.S. courts shift increasingly rightward, even existing regulatory authority is consistently eroded, forcing states into a greater role on issues like environmental and consumer protection.

The push has been particularly effective in the telecom and media sectors, where rules governing everything from longstanding media consolidation limits to basic broadband privacy protections have been stripped away over the last decade by industry lobbyists. 

The Supreme Court’s EPA ruling was considered a landmark victory in the effort to lobotomize competent regulatory oversight. And during Sohn’s third confirmation hearing, Schmitt claimed that Sohn—should she ever actually be approved to the agency—would be defying Supreme Court precedent if the FCC restored net neutrality.

But experts say that several key legal rulings—including the 2005 National Cable & Telecommunications Ass’n v. Brand X Internet Services Supreme Court case—have made it clear that the FCC has the authority to restore (or dismantle) net neutrality rules as it sees fit, without seeking additional congressional approval. 

“The EPA ruling is unlikely to prevent the FCC from enacting net neutrality protections,” Ryan Singel, a fellow at Stanford Law School’s Center for Internet and Society, told the Daily Dot.

“Congress explicitly told the FCC in the Communications Act to classify services as either Title I Information Services, over which it has little authority, or Title II telecommunications services, which are then subject to FCC authority and common carrier obligations. Though the FCC can decide, via that statute, what obligations don't have to apply to a particular service.”

If broadband service is classified as a telecommunications service under Title II of the Communications Act, as it was by the pro-net-neutrality Obama administration in 2015, the FCC is empowered to police those services for “unfair and unjust practices.” 

Similarly, the Trump administration had the same authority to reverse that decision in 2017, despite a broad bipartisan majority of Americans who supported the rules.

Ideally, Congress would pass a net neutrality law to end this perpetual game of regulatory ping-pong, but given the telecom industry spends an estimated $320,000 every single day lobbying the federal government, that’s proven to be a largely impossible task.

Meanwhile, the FCC’s interest in seriously policing telecom monopolies ebbs and flows depending on which party holds the White House and an FCC majority. When the GOP is in power, the FCC largely demurs to the telecom lobby. When the Democrats take over, the FCC is generally rife with infighting between reformers and the corporate-cozy status quo. 

And that’s in the best of times, when it can even get a 3-2 majority. Sohn’s case has shown that Republicans won’t even allow a modicum of liberal policy at the agency, despite the legal requirements. 

Sohn’s popularity as a genuine reformer clashes with members of both parties afraid of upsetting telecom giants that are not only significant campaign contributors but bone-grafted to the government.

"I believe deeply that regulated entities should not choose their regulator," Sohn said at the hearing. "Unfortunately, that is the exact intent of the past 15 months of false and misleading attacks on my record and my character. My industry opponents have hidden behind dark money groups and surrogates because they fear a pragmatic, pro-competition, pro-consumer policymaker who will support policies that will bring more, faster, and lower-priced broadband and new voices to your constituents."

Reformers say the killing of net neutrality rules didn’t just kill net neutrality rules. It effectively gutted the FCC’s consumer protection authority, leaving the nation’s telecom giants largely unaccountable for years of predatory billing, substandard service, and misleading marketing.

The Trump FCC’s net neutrality repeal even attempted to ban states from protecting broadband consumers, though courts have since frowned on the effort, saying the agency can’t abdicate its responsibilities on consumer protection, then dictate the scope of state enforcement efforts.

As a result, states are now the last line of defense on everything from consumer privacy and environmental regulations to broadband consumer rights. But for every California or Maine that enacts its own net neutrality or broadband privacy rules, there are numerous states where broadband consumer protection is a performative afterthought.

Singel stated that while the industry will certainly attempt to use the EPA ruling in court to scuttle any FCC attempt to restore net neutrality, it will require some serious distortions of the law to make the argument, dramatically reducing the industry’s chance of success. 

If that is, the FCC can even pass new rules.

“For the EPA ruling to block net neutrality, it would have to be read to ban the FCC from classifying broadband at all, which would overthrow all FCC classification decisions past and future and basically say that Congress can never delegate power to federal agencies. While that might be the dream of conservatives that hate federal agencies, the EPA decision didn't go that far.”

Harold Feld, a lawyer at consumer group Public Knowledge, also told the Daily Dot that the EPA ruling shouldn’t impact the FCC’s ability to restore net neutrality. In a blog post Feld argues that while the law is murky, and the industry will most certainly try to use the ruling to scuttle any restoration of net neutrality, it’s probably not going to be effective.

“As far as net neutrality goes, it doesn’t change anything,” Feld said. “Those who were convinced Title II was doomed before yesterday will see the inkblot confirming their belief.”

The goal of the GOP and industry alliance has long been to dismantle meaningful state and federal oversight of U.S. corporations. From environmental law to telecom, that effort has been a smashing success, forcing reformers to increasingly give up on waiting on competent federal leadership and shift their focus toward state governance and locally owned alternatives to monopoly power.

And now, it may have completely stopped Biden’s best hope at the federal level to improve America’s broadband and battle monopolistic control of the telecom industry. 

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