Young, Colleagues Urge FCC to Halt Unlawful Plan to Reclassify Broadband as a Public Utility

WASHINGTON – U.S. Senator Todd Young (R-Ind.) joined U.S. Senate Commerce Committee Ranking Member Ted Cruz (R-Texas), House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA-5), and a bicameral coalition of colleagues in calling on the Federal Communications Commission (FCC) to reverse course and abandon its so-called “net neutrality” draft order—an illegal power grab that would expose the broadband industry to an oppressive regulatory regime under Title II of the Communications Act. The FCC is set to vote on the draft order on Thursday.

The members argue that the FCC’s draft order ignores the text of the Communications Act of 1934, which explicitly precludes the FCC from treating broadband as a public utility. Moreover, the Supreme Court’s recent jurisprudence on the major questions doctrine confirms that the only body that can authorize public utility regulation of broadband is Congress.  Resurrecting this failed Obama-era policy, which will inevitably be struck down by the courts, is a waste of time and resources and will punish American consumers by choking off investment, innovation, and competition.

In a letter to Chairwoman Jessica Rosenworcel, the members write:

“Congress’s decision to treat broadband Internet access as an information service, rather than a telecommunications service, was a deliberate policy choice.Congress recognized that ‘[t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation,’ and accordingly decreed that it ‘is the policy of the United States . . . to promote the continued development of the internet and other interactive computer services . . . [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.’

“Your proposal to reclassify broadband as a telecommunications service does the exact opposite. It would give the Commission largely unfettered power to impose (and allow states to impose) rate regulation, tariffing requirements, unbundling obligations, entry and exit regulation, and taxation of broadband—the antithesis of leaving broadband ‘unfettered’ by regulation as the law requires. Congress has had many opportunities to give the FCC such power, yet it has never done so in any of its ample legislative enactments regarding broadband over the past two decades. Rather, legislators have repeatedly considered but ultimately rejected efforts to replace the longstanding light-touch framework with common carrier regulation. And for good reason: Title II will inflict significant damage on consumers by chilling investment and innovation. 

“Finally, recent jurisprudence from the Supreme Court confirms that the Commission has no power to impose Title II on the broadband industry. As the Commission’s record demonstrates, the question of whether broadband should be subject to public utility regulation is an issue of ‘vast economic and political significance,’ such that the Commission must identify ‘clear authorization from Congress’ to justify such a decision. Our review of the relevant statutory provisions leaves no doubt that, far from possessing the type of ‘clear’ statutory authority required under Supreme Court precedent, the Commission lacks any authority to subject broadband services to common-carrier regulation.” 

Full text of the letter can be found here.