TechFreedom v. Federal Communications Commission

Linked with:

• Berninger v. Federal Communications Commission
• AT&T, Inc. v. Federal Communications Commission
• American Cable Association v. Federal Communications Commission
• CTIA-The Wireless Association v. Federal Communications Commission
• NCTA- The Internet and Television Association v. Federal Communications Commission
• United States Telecom Association v. Federal Communications Commission

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether the Federal Communications Commission's Order imposing common carrier status upon broadband providers constitutes a major rule of vast “economic and political significance,” requiring Congress to “speak clearly” if it wishes to delegate the matter to an agency's interpretive discretion, when the Order will affect (i) every American Internet service provider, which collectively invest over $78 billion in network investments annually as of 2014; (ii) every Internet content provider, an industry that currently includes the five largest companies in the United States by market capitalization; and (iii) every Internet consumer, currently totaling over 275 million Americans; and, if so, whether Congress expressly authorized the FCC to issue the major rule, when (i) Congress enacted Telecommunications Act of 1996, upon which the FCC relies, with the express purpose of ensuring “the Internet and other interactive computer services,” remain “unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2); and (ii) the FCC concedes that “the Communications Act did not clearly resolve the issue of how broadband should be classified”; and (2) whether the FCC's reinterpretation of the term “public switched network” to include IP enabled services is, by virtue of implicating additional services, a minor or major question.