Big Telecom Allied GOP Lawmakers Pretend New FCC Net Neutrality Push Is ‘Unlawful’

Legal Issues

from the here-we-go-again dept

As noted last month, the Biden FCC is finally getting ready to restore net neutrality rules stripped away during the Trump administration amidst a lot of bullshit and fraud. And unpopular telecom giants, with the usual support of the GOP, are already busy trying to undermine the effort with a whole new list of manufactured grievances they’ve been seeding in a lazy U.S. press.

You’ll recall that the courts have repeatedly ruled that not only was the Obama FCC well within its legal authority to impose net neutrality rules, they’ve repeatedly shot down the industry’s attempt to sue state-level protections into oblivion. There’s no real debate over the legality of what’s happening.

Yet in a new letter to the FCC written by 29 Republican members of Congress, the lawmakers proclaim that the FCC’s looming attempt to restore net neutrality is somehow “unlawful.”

Their reasoning? Because the corrupt right wing brunchlords at the Supreme Court could possibly defang some regulators via looming rulings in January, they think the FCC just, gosh, shouldn’t try to protect consumers or implement very popular policies:

“This proposal is unlawful. Regulation of broadband is undoubtedly a major question of economic and political significance. Under the major questions doctrine, articulated in West Virginia v. EPA, an agency must wait for Congressional authorization before acting. In other words, if broadband needs to be regulated as a utility, that is a decision for Congress to make, not the FCC. Congress has not spoken on this issue.”

This is an idea the telecom industry has been seeding in the press for a few weeks via assorted covert policy and lobbying proxies. But you’ll surely be surprised to learn the GOP lawmakers aren’t being honest.

Yes, the Supreme Court is poised to deliver the GOP its long desired killing blow to regulatory authority via two cases it will likely rule on in January. Those cases will take aim at a longstanding legal doctrine dubbed Chevron deference, which gives regulators the authority and latitude to make decisions for themselves, provided it’s generally within the authority given them by Congress.

If successful, the ruling would dramatically scale back the ability of regulators to make decisions for themselves and interpret statutes using their specific subject-matter expertise. The goal: to ensure regulators can’t do much of anything without the explicit approval of a Congress industry knows it lobbied into apathy and dysfunction decades earlier (it’s of course dressed up as something far more noble).

What happens to Americans if industry and the GOP succeed in hamstringing already shaky regulatory authority really hasn’t been discussed enough. The ruling will effectively put labor, public safety, consumer protection, and environmental regulators on their heels, ensuring these already long-understaffed and under-funded agencies can’t do their fucking jobs.

And when these regulators fail to do their jobs, industry giants will insist it simply proves the inherent untrustworthiness of government, and somehow wasn’t the direct result of a generation of successful lobbying by self-serving billionaires and giant monopolies like AT&T.

The goal has long been: zero meaningful oversight of corporate power. While it’s dressed up as serious adult policymaking and some noble deference to the sanctity of Congress and constitutional balance, it’s basically just part of the endless and wildly successful American quest for utterly unconstrained greed.

But here’s the thing: that ruling hasn’t happened yet. It’s still possible it doesn’t happen. Telecom policy gurus like Harold Feld have noted he’s not sure the Supreme Court has the votes, and even if it does, the FCC’s legal history should make it more resilient to the change than other regulators:

“One of the most important rulings relied upon by the courts regarding this doctrine is a 2005 case Gonzales v. Oregon, which blocked the Attorney General via the Drug Enforcement Agency from regulating doctors’ prescriptions under the public interest standard. In that ruling, the Court went out of its way to note that, while Congress delegated limited powers to the DEA, the FCC was an example of an agency that had far more expansive powers via its writ from Congress.

In other words, the court said that the FCC possesses a much stronger “Chevron deference,” a related legal standard that holds that when there’s ambiguity the courts should defer to the administrative bodies’ interpretation.”

The fight is important but complicated, ensuring it doesn’t see much traction among headlines about nonexistent billionaire fist fights. I’d highly recommend reading this American Prospect piece on how the telecom industry is seeding this stuff in a lazy press. I’d also recommend this post by the Natural Resources Defense Council or this piece over at Vox on the broader issues at play.

The telecom industry has long argued that it should be up to Congress (and Congress only) to craft net neutrality rules. But again, the industry knows they’ve lobbied Congress into a corrupt bowl of pudding long ago, ensuring any such effort could never pass. Now they’re arguing because a corrupt Supreme Court might make future rulings in industry’s favor, the FCC shouldn’t bother trying.

It’s all bad faith bullshit, well in line with the kind of bad faith bullshit we saw the last time net neutrality was consistently making headlines. Remember, at its core net neutrality is actually about how to counter the impact of harmful, concentrated monopoly power. Big telecom and its GOP BFFs, unsurprisingly, would prefer regulators sit on their hands like obedient toddlers, public interest and impact be damned.

Filed Under: big telecom, broadband, chevron deference, fcc, ftc, general questions, monopolies, net neutrality, telecom