A Supreme Court decision to limit the power of the Environmental Protection Agency (EPA) could hurt Democrats’ long-fought battle to restore Obama-era net neutrality rules.
If the same principle is applied by the majority opinion in Thursday’s case, arguing that Congress must give express authorization for certain regulations, the FCC may not be able to reinstate rules barring providers of services to block or restrict websites.
“There’s a big power shift from the agencies to the courts,” said Blair Levin, a policy adviser at New Street Research who served as chief of staff to former FCC Chairman Reed Hundt.
Levin and other experts say the ruling is written in a way that opens the door for rulings by the FCC and the Federal Trade Commission (FTC) to potentially be overturned in court.
At the heart of the problem is the conservative majority basing its 6-3 decision on a legal philosophy called the “fundamental issues doctrine.” The principle means that proposed rules can be challenged on the grounds that the rule is a “substantive matter” that only Congress should be able to consider.
The ruling essentially gives the courts a chance to decide what is a fundamental issue and, in turn, to decide that the regulation requires clear authorization from Congress, Levin said.
“So that adds a level of uncertainty to any agency decision,” he said. “Whatever you thought the odds of the agency’s decision being overturned before, you now think are higher.”
Democrats and advocates have been pushing to restore net neutrality rules since 2015, after they were rolled back under the Trump administration. But a year and a half into Biden’s administration, the FCC failed to act because of a 2-2 partisan deadlock in the commission amid a hold-up on Biden’s Senate nominee, Gigi Son.
Now, even if the Democrat-controlled FCC reinstates the order, the rules will face a more uncertain path forward in the courts.
“There’s no way I can sugar coat it and say it’s good news for [Federal Trade Commission] or FCC. Or any kind of regulatory action,” said Matt Wood, vice president of policy and general counsel for the Free Press.
But, he said, it wasn’t necessarily “breaking or bad news” because the decision was made in a way that appeared to apply the fundamental issues doctrine more specifically to the agency and the standing before the court.
“I can’t sit here and guarantee that the FCC will win this again, I just think they have a better chance, far from what the EPA appears to be facing today on this particular issue,” Wood said.
Especially after recent Supreme Court decisions, including overturning nearly 50 years of abortion precedent established by Roe v. Wade, Wood said nothing feels like “settled law” with the current justices anymore.
Levin also said the FCC may do a better job of maintaining its authority than other agencies, in part because the court cited the 2006 decision in Gonzalez v. Oregon in its decision to limit the power of the EPA. The Gonzalez decision “seemed to imply that the FCC has broad powers that are not undermined by the fundamental questions doctrine,” Levin wrote in a note to New Street Research on Friday.
But the court also cited a dissent written by then-Justice Brett Kavanaugh, now a Supreme Court justice, from when the D.C. circuit upheld the Obama administration’s net neutrality rules.
Cavanaugh, in dissent, suggested that the FCC’s authority in this case be considered a substantive issue.
The Federal Trade Commission, which has more aggressively pursued rule changes since Chairman Lina Khan took office, may be in a more precarious position.
Zelensky: 2,610 Ukrainian cities remain under Russian occupation. A glitch in American Airlines’ platform allows pilots to cancel thousands of flights
New rules put in place by the FTC, including the agency’s joint effort with the Justice Department to create new merger guidelines, could be interpreted as a major issue if challenged in court, experts say.
“The more ambitious, the more sweeping, the more novel the approach the FTC takes in its rules, the more scrutiny a court would apply to them,” William Kovacic, a law professor at George Washington University and former chairman of the Federal Trade Commission, I said.
“All of this is happening just as the FTC is looking to push the boundaries of its program and do new and creative things — they’re doing just as the Court yesterday and in other decisions is saying ‘we’ are skeptical “, he added.
Add Comment