FCC’s Net Neutrality Rules Blocked By Federal Appeals Court
The FCC’s effort to establish rules of the road for internet service has been sidelined again, as a federal appeals court has blocked the latest version of net neutrality regulations.
The 6th Circuit Court of Appeals concluded that the FCC did not have the authority to implement the rules, which require that ISPs treat all traffic equally. The rules also aimed to limit ISPs from establishing “fast lanes” and “slow lanes,” depending on who paid for preferential treatment.
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While the FCC has gone back and forth for nearly two decades on net neutrality, depending on whether a Democrat or Republican is in the White House, the latest decision casts doubt on any future effort to establish robust regulations. That’s because the Supreme Court last year reversed a precedent that gives deference to federal agencies in interpreting laws they enforce. The precedent stemmed from a 1984 case, Chevron vs. NRDC, and came to be known as “Chevron deference” or the “Chevron doctrine.”
A three-judge panel noted that the net neutrality rules “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.” Applying the most recent Supreme Court decision, the judges wrote, “means we can end the FCC’s vacillations.”
The FCC under President Barack Obama passed the most robust set of net neutrality rules, establishing their legal footing by reclassifying internet serves as a Title II telecommunications service, or a common carrier. The latter regulatory maneuver drew widespread opposition among major telecom companies like Comcast and AT&T.
The latest appellate decision held that broadband internet service was actually an “information service,” meaning that the FCC lacked authority to impose rules under Title II. The judges also ruled that mobile service could not be regulated as a common carrier.
The FCC under President Donald Trump largely reversed the FCC rules, but they were reinstated when Democrats regained control of the agency during President Joe Biden’s term.
FCC Chairwoman Jessica Rosenworcel acknowledged that the latest ruling means that the fate of net neutrality likely rests with Congress.
“Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” she said in a statement. “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.”
The end of “Chevron deference,” meanwhile, could prove to complicate Trump administration efforts to establish its own regulations. The incoming chair of the FCC, Brendan Carr, opposed reinstating the rules. But he has called for the FCC to take action on the way that major internet platforms, like Facebook and YouTube, moderate their third-party content, arguing that they have had a bias against voices on the right. Any action is likely to be opposed by tech giants and challenged in court.
NCTA-The Internet & Television Association and other industry groups said in a statement that the “ruling confirming that broadband internet access is an ‘information service’ is not only the proper reading of the statute but a victory for American consumers that will lead to more investment, innovation, and competition in the dynamic digital marketplace. Since the birth of the internet, bipartisan Administrations and policymakers have recognized the virtues of a light-touch approach to broadband regulation. Today’s ruling will cement the United States’s position as the world’s most advanced digital marketplace.”
Andrew Jay Schwartzman, senior counsel at the Benton Institute for Broadband & Society, an intervenor in the case, said in a statement that the decision “misreads the Telecommunications Act of 1996 in finding the broadband is not subject to the regulatory requirements of Title II of the Communications Act. Among other things, that deprives the FCC of the power to protect national security, insure that competitive broadband suppliers can have access to necessary distribution outlets and endangers wireless access programs for low-income consumers.”
He also said that the appellate judges “rejected the statutory analysis of Justice [Antonin] Scalia – the only telecommunications expert ever to sit on the Supreme Court – and found that the “best reading” of the statute does not permit the FCC to regulate internet providers in many important ways. This is bad for consumers, for businesses that rely on the internet, and for protecting broadband networks from intrusions by nation states.”
In a 2005 Supreme Court dissent, Scalia argued that the FCC should regulate internet service providers as telecommunications services and not information services.
Schwartzman noted that the appellate judges gave a narrow reading to the Supreme Court decision repealing the so-called “Chevron doctrine.” Schwartzman also noted that the court also did not rely on internet providers’ broader arguments over the agency’s authority, known as the “major question doctrine,” “so that the FCC will retain the power to regulate various aspects of broadband service without future Congressional action.”
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