Tag Archives: major questions doctrine

The Major Questions Doctrine

It’s becoming increasingly difficult for administrative agencies like the FCC to undertake substantial new initiatives, since doing so inevitably results in multi-year court cases that are increasingly ruling against the agency. We saw this in 2024 in the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. This suit sides with fishermen over the National Marine Fisheries Service and has been widely interpreted to mean an end to the Chevron deference. That deference came from a 1984 case that said experts at federal agencies should be able to make policy decisions that fit within their overall mandate from Congress. The Chevron deference supported most of the decision made by FCC over the last forty years.

There is another Supreme Court case from 2022 that we are going to increasingly be hearing about. In the case of West Virginia v. EPA, the Supreme Court created what is being called the major questions doctrine, which bars federal agencies from resolving questions of “vast economic and political significance” without clear statutory authorization from Congress. This is a murky decision since it makes courts decide if an issue is of vast economic and political significance, and it’s not hard to envision courts with differing opinions on what that means.

But the real reason why these two Supreme Court decisions are momentous is that anything substantial ordered by the FCC or other administrative agencies is inevitably going to end up in court. There will always be somebody that dislikes any FCC decision, and they now have two ways to attack any ruling without even tackling the specific issue. These court precedents invite lawsuits that claim that the FCC didn’t have the authority to make a specific decision, and that the impetus for the change should have come from Congress.

To some degree, at least in the case of the FCC, it’s not hard to say this isn’t much of a change. After all, basically every important FCC decision over the last decade has been taken to court. However, due to these new court precedents there is a big difference than in the past. Historically, courts eventually resolved suit, either in favor of the FCC or the plaintiff – but many FCC rulings eventually went into effect.

It’s fundamentally different when lawsuits challenge the FCC’s authority to even consider an issue. There is little doubt that anything important the FCC tackles will be taken to court, and in many instances, the challenge will be that the FCC is investigating issues that don’t have a clear mandate from Congress.

New FCC Chairman Brendon Carr has announced an agenda to tackle new areas of investigation, such as regulating web companies through Section 230. Chairman Carr believes Section 230 of the Telecommunication Act of 1996 gives him the tool to take on tech companies. But any FCC action on Section 230 will likely trigger the major questions doctrine since Congress has never given the FCC any explicit direction on how to interpret or enforce Section 230. The statue language on Section 230 has quietly lain embedded in FCC regulations since 1996. If the courts stay consistent with the concept that only Congress can make major regulatory changes, the FCC will be hobbled in breaking new regulatory ground.

Of course, Congress can always intervene on any issue where the courts invoke the major issues doctrine by passing a law that describes its specific intentions. But in a world with strong lobbyists on both sides of many issues, that’s never going to be easy. For example, it’s been the inability of Congress to muster a majority that has stopped it from providing any direction to the FCC on whether broadband should be regulated or not regulated.

I’ve written about every major FCC decision over the last few decades. I’m starting to think my future blog headlines might be, “The FCC sends another decision into limbo in the courts”.

Appealing the Net Neutrality Order

On May 31, a group of major industry trade associations sued the FCC to block the recently enacted net neutrality rules. Petitions were filed in the U.S. Court of Appeals in the D.C. Circuit, Fifth Circuit, Sixth Circuit, and Eleventh Circuit. On the same day, a group of trade associations, including NCTA–The Internet and Television Association, CTIA, USTelecom, ACA Connects, WISPA, and others, petitioned the FCC asking for a stay of the order.

On June 7 the FCC refused to stay it’s order. The order will go into effect on July 22 unless it’s put on hold by an Appeals Court.

The case has been assigned to the Sixth Circuit Court of Appeals, using what is described as a random process. The tactic of suing a federal agency like the FCC in multiple jurisdictions is a form of judge shopping, where the carrier associations are hoping to end up in an appeals court where they think they have a better chance to win. The FCC also petitioned the Sixth Circuit Court of Appeals on June 7, and  asked for a change of venue to the D.C. Circuit – which is the Court that has heard all of the earlier versions of the net neutrality issue. Historically, it has been normal for the D.C. Circuit Court to hear cases related to federal agencies.

Carriers are banking their case on the recently popular major-questions doctrine. This is a legal argument that bars federal agencies from resolving questions of vast economic and political significance without clear statutory authorization. This has been used in recent cases like West Virginia v. EPA that limited the extent to which the EPA could regulate greenhouse gas emissions in the state. The Supreme Court said the EPA went too far past its Congressional mandate in its attempt to regulate power plant emissions.

For the last forty years, the courts have given deference to decisions made by federal agencies, using a ruling in the 1984 Chevron v. National Resources Defense Council case that said that regulatory agencies have the right to regulate based upon the general mandate to regulate given by Congress.

There has been a tug of war between regulators and regulated industries since regulatory agencies were created. Courts have sometimes ruled that regulators have gone too far, such as happened in the case of Brown & Williamson v. FDA where the FDA tried to halt the sale of tobacco and nicotine products to minors, and where the Supreme Court struck down the attempt.

The carrier lawsuits also regurgitate the arguments made in earlier net neutrality cases that say the FCC doesn’t have the authority to impose Title II regulations, which is what enables net neutrality. Courts have ruled several times on the ability of the FCC to declare broadband as a Title II service. Interestingly, courts relied on the same argument to say that the Ajit Pai FCC had the authority to decide that broadband is a Title I information service. The Courts basically said that the FCC has the authority to regulate this kind of question based on the law that created the agency.

It will be interesting to see if the case gets remanded to the D.C. Circuit Court. The FCC makes a strong argument that the D.C. Court has a long history of wrangling with the complexities of FCC regulation, which will mean a more efficient process. Another court will have to catch up and understand the long history of wrangling between the FCC and ISPs.

We’ll also have to see if a Court puts any or all of the net neutrality order on hold during the appeal process. In the lawsuit challenging the first net neutrality order, the Courts put much, but not all of the order on hold. A Court will have to act quickly to make this decision by July 22.