Minnesota Telecom Alliance v. Federal Communications Commission

In January 2024, the FCC implemented recently enacted law by issuing a new regulation requiring equal and nondiscriminatory access to broadband Internet. Industry challenged the regulation on the grounds that it exceeded the FCC’s statutory authority. Among other things, industry petitioners objected that the new rule not only prohibited intentional discrimination, but also covered policies that disproportionately affected consumers of different races or income levels, and that the rule extended to entities other than broadband providers themselves, such as their contractors. Sixteen challenges to the rule were consolidated in the Eighth Circuit.

In July 2024, CAC filed an amicus curiae brief in support of the federal government. Our brief contains two main points.

First, we explain that under Supreme Court precedent, the principal questions doctrine applies only in “extraordinary” cases in which an agency’s breathtaking statement of new authority reflects a questionable effort to transform the fundamental nature of its authority. Supreme Court rulings have consistently shown that it takes more than economic and political significance to entangle the doctrine; other factors must also indicate that an agency is undermining Congress’s intent by pursuing “an unannounced authority representing a transformative expansion of its regulatory authority.”

Second, we argue that extending the principal questions doctrine to cases like this one would undermine traditional statutory interpretation and constitutional principles. We discuss how the principal questions doctrine conflicts with textualism because it emphasizes considerations beyond the statutory text. We also explain that the original public meaning of the Constitution does not support the premise underlying the doctrine: the Founding Fathers had no qualms about directing the executive branch to address major policy issues, and history does not suggest that Congress needs to speak in any particular way to do so. Finally, we discuss how overusing the principal questions doctrine would undermine the separation of powers and push courts beyond their proper role in interpreting the law.