Perspectives from FSF Scholars April 22, 2024 Vol. 19, No. 14

Although the Notice mirrored much of the Obama FCC’s now-repealed 2015 Title II Order, the Draft Order plan’s most striking departure from the 2015 Order is that it recasts public utility regulation of broadband services as a national security and public safety measure. [...] Prior to the Draft Order’s release, the Free State Foundation filed comments and reply comments in the FCC’s Safeguarding and Securing the Open Internet proceeding that set forth several reasons why the Biden FCC’s national security and public safety rationale for Title II reclassification is unconvincing.2 For starters, the timing of the rebrand renders the security and safety rationale suspect. [...] For example, the Draft Order cites the Obama White House’s February 2013 Presidential Policy Directive 21 that “It is the policy of the United States to strengthen the security and resilience of its critical infrastructure against both physical and cyber threats.”6 The Draft Order then suggests that security threats impact broadband ISPs and networks, and thereby finds that Title II reclassificati. [...] a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications.”16 It also cites the 2019 Mozilla Corp. [...] EPA that solidified the Major Questions Doctrine in the Court’s jurisprudence.19 Lacking a clear statement of authority from Congress, it is quite unlikely that the agency’s superficial national security and public safety rationale for public utility regulation of broadband networks will save the Biden FCC’s Internet regulation plan from being struck down under the Major Questions Doctrine.