RESOLVED: The FCC Does Not Have the Legal Authority to Implement Net Neutrality 1-8-2016
Summary: The FCC derives its legal authority almost entirely from statutes that predate the Internet--primarily from the 1934 Communications Act, which was designed for the regulation of a national telephone monopolist, and the 1996 Telecommunications Act, which was designed to incrementally deregulate the communications industry as the vestiges of that national monopoly gave way to competition. Over the past 20 years, the Internet has become the foundation of the communications industry, playing a role similar to that of the monopoly-provided telecommunications services that the FCC has traditionally regulated. There is unquestionably more competition today than there was in 1934, but perhaps not as much as was hoped in 1996. The FCC’s Open Internet Order, in which the FCC brought Internet Service Providers within the regulatory framework initially created in 1934, presents a compelling example of an agency struggling to find a new role in a changed industry – struggling to imbue old statutes with broad grants of power to govern what the FCC, but perhaps not Congress, believes are issues properly within its ambit. In doing so, the Order thrusts the FCC into current debates about the scope of the administrative state, the potential revival of the major questions doctrine, and the potential demise of Chevron. Framed by these issues, this debate will consider whether the FCC’s Open Internet Order fits within the agency’s statutory authority. -- This debate took place during the 18th Annual Faculty Conference at the Sheraton New York Times Square Hotel in New York, NY on January 8, 2016. -- Featuring: Prof. Adam Candeub, Michigan State University School of Law; Prof. Justin (Gus) Hurwitz, Nebraska College of Law; Mr. Geoffrey Manne, International Center for Law and Economics; and Prof. James Speta, Northwestern University School of Law. Moderator: Prof. Daniel Lyons, Boston College Law School.