On behalf of TechFreedom, CARI.net, and individual tech innovators, BG&A filed briefs before the Court of Appeals for the D.C. Circuit in 2015, arguing that the FCC’s Open Internet Order is unlawful. A divided panel upheld the FCC’s Order, and BG&A filed a petition for rehearing en banc.
Throughout the litigation, BG&A argued that Chevron deference was unwarranted because the FCC’s arrogation of power to regulate broadband internet access providers as common carriers represented “a question of deep economic and political significance that is central to the statutory scheme.”
Although the panel majority rejected BG&A’s “major questions” argument, Circuit Judges Brown and Kavanaugh adopted it in two separate opinions dissenting from the denial of rehearing en banc. As noted in a separate opinion concurring in the denial of rehearing, BG&A’s was the only brief to raise this argument.
In a recent notice, the FCC has proposed to reverse the Open Internet Order’s burdensome regulatory treatment of internet service providers, restoring the FCC to its proper role under the statutes that Congress has enacted.