Andrew Harnik/AP Photo
Former Solicitor General Donald Verrilli Jr. speaks outside the Supreme Court in Washington on Dec. 7, 2022.
When Donald Verrilli and Ian Gershengorn took to Bloomberg Law’s op-ed pages to call on the Federal Communications Commission not to restore net neutrality protections, it came as a bit of a surprise. After all, Verrilli and Gershengorn were each Solicitor General of the United States at different points for the Obama administration, which established net neutrality in the first place before it was later revoked by Trump’s FCC chair Ajit Pai.
The two world-weary Obama veterans don’t think net neutrality is a bad policy. Instead, they argue that the Supreme Court’s conservative majority would use its newfangled “major questions doctrine” to strike down any change to open internet laws. Therefore, the FCC, now with a Democratic majority for the first time in the Biden administration after the confirmation of Anna Gomez last week, shouldn’t even try.
Verrilli and Gershengorn referred to and summarized a white paper they penned on the subject. A quick glance at that document makes their rationale a little clearer. On the first page, a disclaimer reads: “We gratefully acknowledge the support of USTelecom–The Broadband Association and NCTA–The Internet & Television Association—in funding this analysis.”
These are both industry lobbying organizations. USTelecom represents industry giants AT&T, Verizon, and Elon Musk’s SpaceX, which houses satellite communications provider Starlink. It has already spent almost a million dollars on congressional lobbying so far in 2023. NCTA’s $2 million in lobbying this year has aided corporate broadband providers such as Comcast, Charter and Cox Communications.
Both associations led the charge to sink the FCC nomination of net neutrality advocate Gigi Sohn, which kept the commission deadlocked between Democrats and Republicans for over two years. USTelecom was the plaintiff that sued to block the original net neutrality rule in 2016.
You would have had to go to the white paper and then do additional digging to find any of this out, however. Bloomberg Law offered no disclosure of Verrilli and Gershengorn’s industry funding in the op-ed, to let readers decide about the potential conflicts of interest. On Wednesday, Bloomberg reported on its own op-ed, with a news story headlined “FCC shouldn’t push net neutrality, Obama Solicitors General Says.” That news piece was only updated to disclose industry funding for the white paper after the Prospect questioned Bloomberg about the omission.
The editors at Bloomberg Law that oversaw the op-ed piece did not respond to a request for comment to clarify its policies about disclosures or address the conflict of interest. The authors of the piece did not respond either.
The Obama vets’ argument was not an unfamiliar one to net neutrality advocates. “This is part of their game,” said Harold Feld, vice president of Public Knowledge. “The last time the FCC tried to make these rules, industry trade groups pushed the same narrative that it would just get blocked in court.”
The concern trolling is unique, however, in that it’s been laundered through former Obama officials and legacy media, creating a “neutral” controversy that appears more legitimate than just parroting the industry party line.
The defeatist Bloomberg op-ed treats it as a given that net neutrality would run afoul of the major questions doctrine. This legal principle has been used by conservative justices to limit the ability of administrative bodies to issue regulations on important policy areas that go beyond Congress’s original intention, as the Court interprets it.
In recent rulings such as West Virginia v. EPA and Nebraska v. Biden, the current Supreme Court has greatly expanded the understanding of “major questions” to strip the administrative state of its powers to regulate industry on issues such as climate change, or to cancel student debt.
While Verilli and Gershengorn state explicitly that they believe the major questions doctrine is “wrong,” they lend credence to the Court’s understanding of it. They write that “the commission lacks the clear authorization that the Supreme Court requires.”
Given the Court’s track record, it’s certainly plausible that justices could try to use the major questions doctrine to block the FCC from relying on Title II of the Communications Act, to enforce common carrier obligations on broadband providers—the technical procedure to reinstitute net neutrality.
Chief Justice John Roberts in the past, including in the West Virginia v. EPA ruling, has taken a more limited understanding of major questions.
The Bloomberg op-ed and the news piece cite a ruling from Justice Brett Kavanaugh on this very issue when he sat on the D.C. circuit court. Kavanaugh called it indisputable that net neutrality violated the major questions doctrine, because the internet didn’t exist when Congress delegated the FCC to regulate communications sectors. Therefore, Kavanaugh reasoned, it has no say over modern communications infrastructure.
By selectively citing case law and focusing just on Kavanaugh’s rulings, the authors arrive at the position that it’s not worth the FCC using its time and resources to pursue net neutrality, which they deem a legal dead end. Instead, they say Congress needs to act, or the FCC could rely on another authority via the Telecommunications Act of 1996, which has also run into legal trouble in the past (something Verrilli and Gershengorn don’t mention).
Verrilli and Gershengorn, both of whom now work for corporate law firms in D.C., note in their white paper disclosure that “All views expressed here are our own and do not necessarily reflect the views of USTelecom, NCTA, or their members.” But the lack of disclosure of the funding in media mentions still breaks with common journalistic practice.
Other legal experts focused on communications law ardently disagree with the authors’ call for inaction. For two decades, Harold Feld has been an advocate for enforcing common carriage obligations on broadband providers as one of the most important issues to protect the infrastructure of modern communications.
Feld pointed out that net neutrality has already been upheld at the Supreme Court in 2015, though the composition of the court has of course swung to the right in recent years. That case, revealingly, was pursued by USTelecom, the organization that funded the Verrilli and Gershengorn white paper.
Feld also argues that the Bloomberg Law article’s over-reliance on the West Virginia case omits important details about major questions doctrine precedent.
One of the most important rulings relied upon by the courts regarding this doctrine is a 2005 case Gonzales v. Oregon, which blocked the Attorney General via the Drug Enforcement Agency from regulating doctors’ prescriptions under the public interest standard. In that ruling, the Court went out of its way to note that, while Congress delegated limited powers to the DEA, the FCC was an example of an agency that had far more expansive powers via its writ from Congress.
In other words, the court said that the FCC possesses a much stronger “Chevron deference,” a related legal standard that holds that when there’s ambiguity the courts should defer to the administrative bodies’ interpretation. (Chevron deference, it should be noted, is being challenged at the Court this year.)
In a blog post on the ruling, Feld also explains that while Kavanaugh is surely against net neutrality under the major questions doctrine, the same can’t necessarily be said as definitively for the four other justices needed to win the case.
Chief Justice John Roberts in the past, including in the West Virginia v. EPA ruling, has taken a more limited understanding of major questions, and stated that it’s reserved for rare situations.
Justice Clarence Thomas, and to an extent Justices Samuel Alito and Neil Gorsuch, have each recently cited common carriage rules approvingly in the context of social media regulation. It’s an open question whether that would extend to broadband infrastructure but it relies upon the same administrative authority.
Even in the face of a hostile Supreme Court, Feld argues that net neutrality is important enough that the FCC should fight for it either way. The FCC has been in a pitched battle against the telecom industry to ensure the infrastructure of the internet remains open and accessible from discrimination for the last three administrations. Plus, Feld says, using Title II powers is functionally the entire authority delegated to the agency, and the fate of the internet could lie in the balance.
