The Federal Communications Commission (FCC) recently adopted sweeping new rules designed to prevent so-called “digital discrimination” in the deployment, access, and adoption of broadband internet services. But an amicus brief filed by the International Center for Law & Economics (ICLE) and the Information Technology & Innovation Foundation (ITIF) with the 8th U.S. Circuit Court of Appeals argues that the rules go far beyond what Congress authorized.

It appears to us quite likely the court will vacate the new rules, because they exceed the authority Congress granted the FCC and undermine the very broadband investment and deployment that Congress wanted to encourage. In effect, the rules would set the FCC up as a central planner of all things broadband-related. In combination with the commission’s recent reclassification of broadband as a Title II service, the FCC has stretched its authority far beyond the breaking point.

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The Federal Communications Commission has voted on yet another round of net neutrality rules. Its vote Thursday reprises the 2015 rules, which resuscitated the 1934 Communications Act for modern, high-speed broadband networks. The agency decided, by a partisan split of 3-2, to end the “abdication of authority over broadband in 2017” and the ensuing years of “no federal oversight.”

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With yet another net-neutrality order set to take effect (the link is to the draft version circulated before today’s Federal Communications Commission vote; the final version is expected to be published in a few weeks) and to impose common-carriage requirements on broadband internet-access service (BIAS) providers, it is worth considering how the question of whether online platforms (whether they be social media or internet service providers) have the right to editorial discretion keeps shifting.

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In this “Age of the Administrative State,” federal agencies have incredible latitude to impose policies without much direction or input from Congress. President Barack Obama fully pulled off the mask in 2014, when he announced “[w]e are not just going to be waiting for legislation,” declaring “I’ve got a pen, and I’ve got a phone.” Subsequent presidents have similarly discovered that they had pens and phones, too.

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The big news in telecommunications policy last week wasn’t really news at all—the Federal Communications Commission (FCC) released its proposed rules to classify broadband internet under Title II of the Communications Act. Supporters frame the proposed rules as “net neutrality,” but those provisions—a ban on blocking, throttling, or engaging in paid or affiliated-prioritization arrangements—actually comprise just a small part of the 435-page document.

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When Congress passed the Infrastructure Investment and Jobs Act (IIJA) near the end of 2021, it included a short provision that required the Federal Communications Commission to adopt rules to prevent “digital discrimination.” At the time, it was understood the law intended to prohibit broadband providers from intentionally discriminating in their deployment decisions based on “income level, race, ethnicity, color, religion, or national origin.”

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Given how important digital connections are to Americans’ daily lives, it’s urgent that Congress move to renew the Federal Communications Commission’s authority to auction parts of the public airwaves.

That authority lapsed a little over a year ago and efforts to reinstate it have been repeatedly stuck in partisan gridlock.

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The Federal Communications Commission (FCC) has proposed classifying broadband internet-access service as a common carrier “telecommunications service” under Title II of the Communications Act. One major consequence of this reclassification would be subjecting broadband providers to Section 214 regulations that govern the provision, acquisition, and discontinuation of communication “lines.”

In the Trojan War, the Greeks conquered Troy by hiding their soldiers inside a giant wooden horse left as a gift to the besieged Trojans. Section 214 hides a potential takeover of the broadband industry inside the putative gift of improving national security.

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Cable and satellite programming blackouts often generate significant headlines. While the share of the population affected by blackouts may be small—bordering on minuscule—most consumers don’t like the idea of programming blackouts and balk at the idea of paying for TV programming they can’t access.

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