The Federal Communications Commission (FCC) is required by law to classify communications technologies like broadband internet as falling within one of two buckets—“information service” or “telecommunications service”—and regulate them accordingly. In May 2024, the FCC classified broadband as a telecommunications service, which gives the FCC greater authority to regulate its use. The FCC also adopted “net neutrality” regulations for broadband. Net neutrality means that internet service providers cannot block lawful content or applications, throttle particular internet content, or engage in “paid prioritization.” For example, an internet service provider cannot favor a particular e-commerce company over others by making its website load more quickly than those of its competitors. 

Industry associations filed numerous challenges to the net neutrality regulation, arguing that the FCC may not regulate broadband as a telecommunications service because of the “major questions doctrine.” The cases were consolidated in the U.S. Court of Appeals for the Sixth Circuit, and in September 2024, CAC filed an amicus brief in support of the FCC. Our brief makes three main points. 

First, we explain that under Supreme Court precedent, the major questions doctrine applies only in “extraordinary” cases, where an agency’s assertion of breathtaking new power reflects a dubious effort to transform the fundamental nature of its authority. Supreme Court decisions have consistently demonstrated that more is needed to implicate the doctrine than economic and political significance alone; other factors must indicate that the agency is subverting congressional intent by seeking “an unheralded power representing a transformative expansion in its regulatory authority.” 

Second, we show that none of the requirements for applying the major questions doctrine is satisfied in this case. The economic and political significance of the FCC’s action is not sufficient to trigger the doctrine, nor does the regulation transform the authority Congress meant to confer on the FCC. Instead, the FCC is exercising the same power it has always exercised under the Telecommunications Act of 1996: determining how communications services should be classified and regulated under the statute. The major questions doctrine is not implicated simply because an industry does not like the FCC’s resolution of those questions.    

Third, we argue that extending the major questions doctrine to cases like this would undermine traditional statutory interpretation and constitutional principles. We discuss how the major questions doctrine is in tension with textualism because it emphasizes pragmatic considerations outside the statutory text. We also explain that the Constitution’s original public meaning does not support the premise underlying the doctrine: the Founders had no qualms about directing the executive branch to handle major policy questions, and history does not suggest that Congress must speak in any particular manner to do so. Finally, overuse of the major questions doctrine would undermine the separation of powers and thrust the courts beyond their proper role in interpreting the law. 

Because the FCC’s net neutrality regulation does not meet the high standard the Supreme Court has prescribed for applying the major questions doctrine, and because applying the doctrine more widely would exacerbate its tensions with textualism, the Constitution’s original meaning, and the separation of powers, the Sixth Circuit should decline to apply the doctrine and should uphold the FCC’s action.