Berninger v. Federal Communications Commission: The Outer Limits of Judicial Deference

Cite as: 3 GEO. L. TECH. REV. 461 (2019)

Broadband Internet is the most common Internet service used in the United States.1 Broadband includes all services that provide high speed Internet, although not all Internet services are broadband.2 Government regulation of broadband is highly controversial, in part due to broadband’s rapid development and expansion. Congress has avoided drafting legislation governing broadband and instead granted regulatory authority to the Federal Communications Commission (FCC) under the theory that the FCC is in a better position to promulgate rules related to telecommunications3 and information services. In turn, the FCC has generally limited its regulation of broadband, with the goal of encouraging online innovation such as the development of video streaming, online commerce, and social networks.4
In pursuit of this goal, the FCC developed net neutrality principles in the 2010 and 2015 Open Internet Orders.5 Net neutrality is “the principle that [Internet Service Providers (ISPs)] treat all data on the Internet equally, and not discriminate or charge differently by user, content, website, platform, application, type of attached equipment, or method of communication.”6 The recent case of Berninger v. FCC addressed the issue of whether the FCC can promulgate net neutrality rules in the future without express congressional authorization.7 While the Supreme Court ultimately denied certiorari,8 the question presented by Berninger is still relevant given the continuing public debate on net neutrality and the possibility of a future administration sympathetic to stronger broadband regulation.

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Daniel Carlen

GLTR Director of Outreach; Georgetown Law, J.D. expected 2020; College of William
and Mary B.A. 2014. The author would like to thank Professor Victoria Nourse for her
constructive feedback.