2 days Ago By Brandon Vigliarolo
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 challenged in court.
Net neutrality has been consistently opposed by the telecommunications industry and ISPs, who were quick to act on the Supreme Court's decision in Loper Bright Enterprises v. Raimondo in late June 2024, that in simple terms stripped government agencies of their ability to interpret laws and fill in the technical gaps in broad-brush legislation. The 6th Circuit Court of Appeals was petitioned in mid July by several telecoms players and trade groups following that SCOTUS decision in a bid to strike net neutrality down yet again, with the prior moves by the Supremes cited as the reason they figured they could succeed.
The Supreme Court's decision last year eliminated the Chevron deference, a doctrine from a 1984 court decision that determined government agencies could define ambiguous terms in legislation, provided they were still attempting to apply laws in line with Congress' original intent. The telecom groups appealing net neutrality to the 6th Circuit specifically cited one of the Supreme Court decisions made in June, Loper Bright , which held that judges didn't have to defer to agencies' interpretations of laws in making decisions. In short, the elimination of Chevron deference by the Supreme Court gave the industry a significant legal advantage in challenging net neutrality rules imposed by a regulator interpreting American telecommunications law, as opposed to actual legislation enshrining the rules.
The FCC under the Obama-Biden administrations believed the federal body had the power to make that rule from its reading of existing statutes; its opponents argued the watchdog in fact did not, and that this whole thing was an overreach of authority. 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 in light of the Supreme Court's position, the FCC did not have the legal authority to put the open internet rule in place after all from its reading of the law.
"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 classification 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.
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