FCC Opposes Stay of Open Internet Order; ISPs Oppose Transfer of Case to D.C

The FCC also argued that the major-questions doctrine - a development in the Supreme Court's approach to assessing whether a regulatory agency should be given deference in assessing the statutes - did not apply in the case, "[b]ecause the Order simply follows the best reading of the statute" and, in any case, because the Supreme Court's 2005 NCTA v. Brand X Internet Services decision "squarely held that the Act empowers the FCC to determine the proper classification of broadband, petitioners' major-questions argument is foreclosed unless Brand X is directly overruled on that point. Order ¶264&nn.106-111; see City of Arlington v. FCC, 569 U.S. 290, 307 (2013) ('It suffices' that 'Congress has unambiguously vested the FCC with general authority to administer the Communications Act' and the agency must necessarily decide the issue 'in the exercise of that authority.'); Gonzalez v. Oregon, 546 U.S. 243, 258-59 (2006) (Brand X found the FCC's 'authority is clear' here)," the FCC said. ISPs Oppose FCC Plea to Transfer Case Meanwhile, the industry groups challenging the open Internet order have urged the Sixth Circuit to reject the FCC's motion to transfer the case to the District of Columbia Circuit (TR, June 14), which, the FCC has argued, has heard challenges to earlier FCC actions dealing with the same issue. "The FCC's argument for transfer boils down to (1) the fact that the D.C. Circuit has previously decided four cases addressing FCC regulation of internet service providers; and (2) the fact that most of the lawyers involved in this case work in D.C. Neither of those points is persuasive - appellate courts across the country regularly decide federal rulemaking cases, and it is the location of the parties, not the attorneys, that is relevant to the transfer analysis," it continued.