Court Decision Could Influence Net Neutrality Change

A Supreme Court 6-3 decision (June 2022) concerning the authority of the EPA to regulate climate change-causing emissions of power plants, could have the effect of limiting any Biden Administration changes on net neutrality. The Court's majority decision embodies what has become known as the “Major Questions Doctrine,” which many believe is tied to the current conservative-leaning Court. The Doctrine has implication on all matters where Congressional direction/intent is not entirely clear.

Net Neutrality is likely to be considered a "major question" and any future Court review of any future net neutrality rules may take the view that FCC authority is not clear and specific with respect to regulating in this area. Of course, while the Biden Administration has expressed support for the restoration of net neutrality rules, the process for restoring such rules has so far not event started. That is partly due to the fact that a key nominee of the Administration has not yet been confirmed. While the Biden Administration's net-neutrality-supporting head was confirmed by the Senate (December 2021), a second nominee (Gigi Sohn) has not yet been confirmed (and may never be).

(updated: 7-7-22)

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Executive Order Provision on Net Neutrality

The Biden Administration's Competition Executive Order - 14036 includes a provision that encourages the Federal Communications Commission (FCC) to "restore" net neutrality rules revoked by the Trump Administration. While the elements of the net neutrality policy debate are numerous, span years, and cover a number of regulatory, legislative, and legal matters, the concept generally boils down to the idea that internet service provides (ISPs) should neither control how consumers use their networks nor discriminate among the content providers using their networks. ISPs would treat all internet communications equally and not intentionally block, slow down, or charge for specific online content. 

To affect net neutrality, the Obama Administration-led FCC reclassified ISPs under Title II of the Communications Act of 1934, making them common carrier services that could be regulated as utilities and subject to price limits. The Trump Administration-led FCC reversed this classification. At the same time, several States have enacted their own net neutrality laws (e.g., California, Washington), spurring legal challenges that remain in the courts.

While no further Federal actions have been taken to date, there is an expectation that a Democrat majority within the FCC will steer rulemaking by the agency to put net neutrality, or some form of the prior rules, back into place. 

(updated: 2-2-22)

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