Genachowski suggests Supreme Court could strike down anti-net neutrality decision

Federal Communications Commission (FCC) Chairman Julius Genachowski made an unwavering defense of the legal basis for net-neutrality rules during an Energy and Commerce hearing Wednesday.

Facing deep skepticism from the Republican members of the panel, Genachowski stood by the position that he acted within legal bounds when he cemented the controversial rules over Republican opposition.

Genachowski appeared to go further than usual in standing up the legal basis.

He suggested the Supreme Court would not affirm a decision against the FCC if it were based on the ruling by the D.C. Circuit Court of Appeals. The decision had struck down a net-neutrality enforcement effort last year.

Genachowski said there is "some open ground for the Supreme Court to overturn" the reasoning of that appellate court ruling.

The analysis stood out in a session that otherwise rehashed, on both sides, the perennial concerns of the broadband debate. The FCC chose not to appeal the decision.

Still, Genachowski said, in spite of that "open ground," the FCC's document "falls well within our authority in the Communications Act" and can coexist with the appellate decision. 

Genachowski noted that his agency considered a different legal route to underpin the rules — Title II reclassification  — but eventually backed off that approach when both parties expressed a strong distaste.

"We listened to that. We heard that. We didn't rely on Title II in adopting our final decision," he said. 

Republicans on the panel felt strongly that the FCC had exceeded its authority. 

"You ought to be real sure you have the authority … or if you're even questioning the authority, you should come to the people's house," said Rep. Adam Kinzinger (R-Ill.).

Communications subcommittee Chairman Greg Walden (Ore.) said if the rules are not challenged, "this claim of authority would allow the FCC to regulate any matter it discussed in the national broadband plan."