November 2, 2023

Senator Schmitt Demands Answers from FCC Chairwoman Regarding her Attempt to Reinstate Net Neutrality Rules

WASHINGTON – Today, Senator Eric Schmitt sent a letter to FCC Chairwoman Jessica Rosenworcel to demand answers regarding the FCC’s partisan Notice of Proposed Rulemaking (NPRM) to reinstate failed Title II net neutrality rules:

“As a member of the U.S. Senate Committee on Commerce, Science, and Transportation, I have seen the Biden Administration attempt to enact regulations that would ban gas stoves, mandate that domestic semiconductor manufacturers work with equity groups to promote gender ideology, and require internet service providers to develop plans to combat climate change when building out their broadband networks. Administrative agencies have implemented these far-left regulations without any clear congressional delegation,” the letter reads. “As a result, it truly confounds the mind that under your leadership as Chairwoman, the Federal Communications Commission (FCC) would attempt to reinstate failed net neutrality rules.”

“Despite the law and history, your FCC is acting as if the major questions doctrine and other decisions limiting agency authority since are merely footnotes that can be ignored in your unabashed power grab to regulate the internet. Let me be clear then: Because neither the Communications Act of 1934, the Telecommunication Act of 1996, nor any other act of Congress provides the FCC the clear authority to implement this massive regulatory scheme, the FCC does not have the ability to survive a legal challenge,” the letter continues. “Your blind efforts to move forward ignores our separation of powers, and the will of the people through their elected representatives in Congress to determine how to best balance our economic and national security interests on the internet. The powers you seek firmly rest with Congress.”


  • The FCC adopted a Notice of Proposed Rulemaking (NPRM) on October 19, 2023 to reclassify broadband internet access service (BIAS) as a Title II common carrier service in a divided vote.
    • This could stifle innovation, deter further investments in U.S. networks, and erode all the gains providers have made to bridge the digital divide.
  • Under previous attempts at the FCC to reclassify broadband internet access service as a utility, the reclassifications have only been upheld under the Chevron doctrine. In past decisions, courts held that a single ambiguous term—“offering”—allowed the Commission to implement these regulations. However, the legal reasoning underlying the Chevron doctrine has changed significantly since the FCC’s last attempt to implement net neutrality in 2015.
  • In 2022, the U.S. Supreme Court invoked the major questions doctrine to determine whether administrative agencies had congressional delegation to regulate.
    • The Court ruled that an agency may implement a regulation of “vast economic and political significance” if and only if Congress has expressly and clearly supported that regulation.
  • Earlier this year, an FCC commissioner nominee failed to be confirmed by the Senate. This failed nominee testified in front of the Commerce Committee that the FCC could act and implement net neutrality without any congressional authorization.