Republican members of Congress urged a federal appeals court to vacate the Federal Communications Commission's net neutrality rules, saying any such rules should be written by lawmakers instead of the commission.

"Congress certainly did not leave (and would never have left) this issue of great national importance to be decided by the FCC, as it 'would bring about an enormous and transformative expansion in [the agency’s] regulatory authority without clear congressional authorization,'" 23 Republican representatives led by Marsha Blackburn of Tennessee wrote in a friend of the court brief. (The filing is dated November 4, but it was submitted after a deadline and finally accepted into the record yesterday.)

Congressional Democrats supported the FCC's rules, but Republicans told the court that the opposing party's brief "does not represent the views of Congress and in fact is opposed by Members of the majority party in the House."

The FCC, in its decision to reclassify broadband providers as common carriers and impose net neutrality rules, drew from its authority granted by Congress in the Communications Act of 1934 and the 1996 revision to the law. Broadband providers sued to overturn the FCC's decision, saying the commission overstepped its authority.

A previous court ruling overturned an earlier version of the FCC's rules, saying the commission had imposed common carrier-style regulation without classifying Internet service providers as common carriers. FCC Chairman Tom Wheeler argues that the FCC's decision to reclassify the providers this time around addresses the legal flaws from the previous attempt. The net neutrality rules outlaw blocking, throttling, and paid prioritization.

The Republicans' brief said that as members of Congress, they "have participated in legislative oversight of the Federal Communications Commission" and are thus "uniquely positioned" to provide background and history of Internet-related legislation and the "proper interpretation" of the Telecommunications Act of 1996. "Countless proposals to authorize the FCC to enforce so-called 'net neutrality' rules failed to pass, so the FCC (pushed by President Obama) took matters into its own hands," they wrote.

Legislative activity in the years since the 1996 Communications Act revision "demonstrates that Congress never intended the Title II-type 'net neutrality' obligations the FCC imposes on broadband providers in the Order and certainly never imagined the radical step of reclassification, which goes far beyond even the legislative proposals for rules that were repeatedly rejected by Congress," Republicans wrote.

Since 1996, "Congress has enacted numerous targeted statutes vesting the FCC and other entities with narrow, circumscribed authority with respect to the Internet—limited grants of power that would make no sense if the FCC already possessed generous authority to regulate broadband providers," they wrote.

While the FCC was considering the rules it ultimately adopted in February, Republicans tried and failed to preempt the commission by proposing weaker rules and gutting the FCC's authority. More failed proposals followed the FCC vote, including an "Internet Freedom Act" that was filed by Blackburn and would simply overturn the FCC's rules without putting alternative ones in place. The Republicans' brief pointed to many other such proposals. Even though Congress never passed anything, the proposals themselves "demonstrate... that Congress understood that the FCC lacks the authority it claims here," Republicans wrote.

Oral arguments in the case are scheduled for December 4.