Technology

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With the Federal Communications Commission preparing to reimpose net neutrality rules and common-carrier regulation on Internet service providers, the broadband industry is almost certain to sue the FCC once the decision is made.

Federal appeals courts upheld previous FCC decisions on whether to apply common carrier rules to broadband, a fact that current agency officials point to in their plan to revive Obama-era regulation of ISPs under Title II.

But some legal commentators claim the FCC is doomed to fail this time because of the Supreme Court's evolving approach on whether federal agencies can decide "major questions" without explicit instructions from Congress.

It would be folly for the Commission and Congress to assume otherwise," two former Obama administration solicitors general, Donald Verrilli, Jr. and Ian Heath Gershengorn, argued in a white paper last month.

The certainty expressed by Verrilli and Gershengorn is less surprising when you consider that their white paper was funded by USTelecom and NCTA–The Internet & Television Association, two broadband industry trade groups that sued the Obama-era FCC in a failed attempt to overturn the net neutrality rules.

The FCC's Notice of Proposed Rulemaking (NPRM), which is pending a commission vote, will seek public comment on how the major questions doctrine might affect Title II regulation and net neutrality rules that would prohibit blocking, throttling, and paid prioritization.

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