The prolonged fight for net neutrality in America has shifted once again, with the FCC’s resurrected regulations struck down by a panel of appeals court judges today.
The decision from the 6th Circuit Court of Appeals, filed today, formally killed the FCC’s April order that once again classified internet service providers as common carriers required to be impartial in the offering of their services regardless of what a customer was doing online.
It’s the second time the communications regulator has attempted to pass net neutrality regulations and the second time the rules have been tossed, but the first time federal judges have been the ones to do it.
We’re going on ten years since the FCC passed its first net neutrality rules during the Obama administration. For those that haven’t kept abreast of the decade-long back-and-forth battle, it’s been a partisan issue since the FCC passed its initial rule in February 2015. Both the original vote and the one in April 2024 to reinstate the rule were decided 3-2 on party lines, with Democrats in the majority.
The reasoning behind the rule has remained consistent: Obama’s FCC reclassified ISPs as Title II common carriers under the 1934 Telecommunications Act, effectively deciding that companies providing internet service were operating a public utility and requiring that they treat all traffic on their networks impartially.
In other words, no internet fast lanes or otherwise restricting/privileging selected traffic. No paying off ISPs specifically to ensure your competitors get slower connections to netizens, for instance.
The Obama-era net neutrality rules were undone in 2017 by President Donald Trump’s FCC under Ajit Pai, again on a party-line vote that was on that occasion in Republicans’ favor. President Biden’s FCC, headed by Jessica Rosenworcel, reinstated the rule last April with largely the same Title II reasoning. The rule was soon challenged in court.
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Net neutrality has been consistently opposed by the telecommunications industry and ISPs, who were quick to act on the US Supreme Court’s decision in Loper Bright Enterprises v Raimondo in June 2024, that simply put stripped government agencies of their ability to independently interpret broad-brush laws and fill in any technical gaps in legislation. The argument being that Congress alone should set the rules, and agencies enforce them without building on top of them.
More specifically, that Supreme Court decision eliminated the Chevron deference, a doctrine from a 1984 judgment that determined government agencies could themselves define ambiguous terms in legislation, provided they were applying the law in line with Congress’ original intent, and that the courts must go along with those definitions as effectively extensions of the law.
The 6th Circuit Court of Appeals was petitioned the next month, July 2024, by several telecoms players and trade groups in a bid to strike net neutrality down yet again, with that Loper Bright outcome cited as the reason they figured they could succeed.
At the heart of this matter is that the FCC, under the Biden and Obama administrations, believed it was able to interpret existing US telecommunications law to issue its net neutrality rule, which the courts would have to respect.
Opponents argued the regulator did not have that authority, that it was an overreach of power, and that the Loper Bright ruling means the FCC’s reading of the law can be overridden by judges.
In summary, the elimination of Chevron deference by the Supreme Court gave the industry a significant legal advantage in challenging the net neutrality rule, which in their view was wrongly imposed by a regulator interpreting American telecommunications law to reclassify carriers as opposed to waiting for legislation to be passed enshrining that.
The trio of judges who made today’s decision, two George W. Bush and one Trump appointee, all variously referred to as Republicans in online profiles, ruled in favor of the industry, that the FCC does not have the legal authority to put the open internet rule in place after all from its reading of the law – and that this reading of the law can be ignored in light of the Supreme Court’s position.
“We no longer afford deference to the FCC’s reading of the statute … We hold that broadband internet service providers offer only an ‘information service’ under [the Telecommunications Act], and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service’ provision,” the three-judge panel wrote.
The FCC lacks the statutory authority to impose its desired net-neutrality policies
“This order — issued during the Biden administration — undoes the order issued during the first Trump administration, which undid the order issued during the Obama administration, which undid orders issued during the Bush and Clinton administrations,” the judges continued.
“Applying Loper Bright means we can end the FCC’s vacillations.”
With that, we might be back where we were during the first Trump administration, with net neutrality just a dream of those worried about competition being hampered online or being charged more money for access to certain parts of the internet.
Those who aren’t worried argue the ‘net has survived and thrived enough long without the need for a net neutrality rule, and that the carrier reclassification is solving a catastrophe that hasn’t happened yet, if ever.
It’s not clear where the fight will go from here, with Rosenworcel set to resign at the beginning of Trump’s second term later this month, and incoming boss Brendan Carr having previously opposed the neutrality rules. The FCC didn’t respond to questions, though the outgoing chairwoman did make clear what she thinks needs to happen: No more rules relying on Title II – this matter needs federal legislation.
“Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” Rosenworcel said in a statement following the 6th Circuit’s ruling. “With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law.” ®