United States Telecom Assoc. v. FCC [Order In Slip Opinion Format]
855 F.3d 381
D.C. Cir.2017Background
- This dispute arises from the FCC’s 2015 "Open Internet Order" (net neutrality), which reclassified broadband as a Title II "telecommunications service" and imposed common-carrier obligations (no blocking, no throttling, no paid prioritization) while forbearing from many traditional Title II provisions.
- A three-judge D.C. Circuit panel upheld the 2015 Order; petitions for rehearing en banc were denied. Concurring and dissenting opinions address statutory authority, administrative-law doctrines, and First Amendment limits.
- The concurrence (Srinivasan, joined by Tatel) defends the panel denial of rehearing en banc, relying principally on Brand X to conclude the FCC has statutory authority to classify ISPs as common carriers and arguing that the Order does not violate the First Amendment because it binds only ISPs that hold themselves out as neutral conduits.
- Judge Brown’s dissent argues the Order unlawfully upsets the 1996 Act’s deregulatory scheme, invokes the major-questions / clear-statement principle to require explicit congressional authorization for such a transformative reclassification, criticizes the FCC’s use (and expansion) of forbearance, and raises separation-of-powers and presidential-intervention concerns.
- Judge Kavanaugh’s dissent emphasizes two independent grounds for invalidation: (1) the major-questions doctrine requires clear congressional authorization for a rule of vast economic and political significance and that authorization is lacking; and (2) Turner precedent confers First Amendment protection on ISPs’ editorial discretion, and the FCC made no market-power showing required to justify restricting that discretion.
Issues
| Issue | Petitioners' Argument | FCC / Respondents' Argument | Held by concurrence (rehearing denial) |
|---|---|---|---|
| 1) Statutory authority to reclassify broadband and impose Title II common-carrier obligations (major-questions/clear-statement) | FCC lacks clear congressional authorization for a major reclassification; Brand X’s ambiguity means Congress did not clearly delegate this major decision (Kavanaugh, Brown). | Brand X authorizes the FCC to choose the classification; the Supreme Court accepted Chevron deference and recognized FCC discretion to treat ISPs as telecommunications carriers. | Concurrence: Brand X settles agency authority to classify ISPs; major-questions challenge fails here. |
| 2) Applicability and limits of Chevron deference for this major rule | Major-questions doctrine should limit Chevron: Congress must clearly authorize agency action of vast economic/political significance. | Brand X applied Chevron to broadband classification; the statute’s ambiguity about classification is precisely the province of agency expertise. | Concurrence: Even assuming a major-questions mode, Brand X demonstrates Congress empowered the FCC to resolve classification ambiguity. |
| 3) First Amendment — whether net neutrality unlawfully restricts ISPs’ editorial/speech rights | Turner line protects editors/transmitters; ISPs have First Amendment rights to favor/block content, and FCC made no market-power showing required to justify compelled carriage. | The rule applies only to ISPs that hold themselves out as neutral, nondiscriminatory conduits; it enforces those representations and does not regulate editorial entities that explicitly offer filtered/curated services. | Concurrence: No viable First Amendment claim for ISPs who advertise neutral conduit service; Turner does not control because ISPs subject to the rule disclaim editorial discretion. |
| 4) Use/abuse of forbearance and administrative process (separation-of-powers/executive influence) | FCC’s extensive reclassification plus broad forbearance effectively rewrites the statute; presidential involvement improperly influenced an independent agency; clear-statement principle and statutory forbearance requirements were not respected. | FCC contends it properly used statutory tools (classification + forbearance) within its authority; procedural challenges do not bar the Order and the administrative record addressed commenters. | Concurrence: Declines to reach or finds en banc review inappropriate now (and notes potential FCC reconsideration); does not adopt Brown’s separation-of-powers/process critiques. |
Key Cases Cited
- National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (upheld FCC discretion under the Communications Act to classify broadband; applied Chevron deference to ISP classification)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (major-questions / clear statement principle: agencies cannot assume authority over matters of vast economic and political significance absent clear congressional authorization)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency statutory interpretations when a statute is ambiguous)
- Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) (Supreme Court applied major-questions skepticism to agency claims of broad authority under long-extant statutes)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (Turner I) (cable operators’ editorial choices implicate the First Amendment)
- Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (Turner II) (upheld must‑carry rules under intermediate scrutiny tied to market-power concerns)
- Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (vacated some FCC rules and described Section 706 limits; identified regulatory paths short of reclassification)
- U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016) (panel opinion upholding the 2015 Open Internet Order; central appellate decision at issue)