On October 1, 2019, the U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s decision to rescind its 2015 rules that imposed massive new regulations on Internet providers. The ruling was a victory for WLF, which filed an amicus curiae brief supporting rescission. WLF argued that the FCC vastly exceeded its statutory authority in 2015 when it adopted extensive rules requiring providers to grant equal access to all Internet users. At issue is whether Congress intended to define Internet service as an “information service” or a “telecommunications service.” If the latter, then the FCC is entitled to impose significant regulations similar to those imposed on common carriers. The court agreed with WLF that the current FCC correctly concluded that broadband Internet access is properly classified as an “information service” under federal law and thus should be regulated far more lightly. Left undecided by the court: are States allowed to impose extensive regulations of their own?
WLF thanks Thomas R. McCarthy and Bryan K. Weir, attorneys with Consovoy McCarthy Park PLLC in Washington, D.C., as well as the Administrative Law Clinic of the Antonin Scalia Law School, for their substantial pro bono assistance in preparing this brief.