Overview
On January 19, 2024, Law360 quoted Pantelis Michalopoulos in an article titled "Net Neutrality Backers Say Rules Must Survive Legal Fights." Some lawyers, representing the gatekeeper cable and telephone companies that do not want net neutrality, are persistently propounding the view that the FCC’s new net neutrality initiative is dead on arrival because of recent Supreme Court “major questions” precedent. Michalopoulos argues that this attack on net neutrality is fundamentally misguided, and in fact the opposite is the case.
According to Michalopoulos, the idea that "net neutrality is bound to wither on the vine or could be sent back because of the 'major questions' doctrine has it all wrong". He adds: "The EPA v. West Virginia case, on which they rely so heavily, is actually the one that confirms that major questions are not some sort of a brand new doctrine, newly minted by the Supreme Court."
EPA v. West Virginia cites existing case law, the Brown and Williamson decision, which "has already been distinguished from net neutrality very convincingly" by the DC Circuit in its 2014 net neutrality Verizon v. FCC decision.
"So if that's what 'major questions' means, it's asked and answered," Michalopoulos said. "The Brown & Williamson doctrine has been distinguished, has been ruled to not apply to net neutrality. So if anything, major questions is a mild tailwind for net neutrality, not a headwind."
