In a ruling issued on Jan. 2, the U.S. Court of Appeals for the Sixth Circuit blocked the Federal Communications Commission (FCC) from restoring its net neutrality rules. The court cited the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimando, which overturned precedent giving deference to government agencies in interpreting laws that they administer. “Applying Loper Bright means we can end the FCC’s vacillations,” the court said in its opinion. The court found that the FCC’s net neutrality rules were inconsistent with the plain language of the Communications Act and therefore unenforceable.
Rulemaking Timeline
Net neutrality rules were first approved by the FCC in 2015 under the Obama administration, and those rules were soon repealed by the Trump administration 2017. Shortly after entering office, President Biden issued Executive Order 14036, “Promoting Competition in the American Economy,” which instructed the FCC to restore net neutrality rules. However, the FCC lacked the votes on the FCC to restore the rules until Commissioner Anna Gomez was confirmed to her role in September 2023. Shortly after Gomez was confirmed, the FCC began the rulemaking process to reinstate the 2015 net neutrality rules. The FCC issued the new final rules in April 2024, and internet service providers quickly filed suit.
Lawsuit and the Court’s Decision
Internet service providers sued the FCC, challenging whether the commission had the authority to reclassify broadband services under Title II of the Communications Act. The Sixth Circuit had put the rules on pause this past summer, noting that the FCC has changed its views on the issue over the past few years. The court ultimately relied on the Supreme Court’s June 2024 decision in Loper Bright, which overturned Chevron deference. The end of Chevron meant that the court did not have to defer to the FCC’s interpretation of the Communications Act to determine the legality of the net neutrality rules, and instead the court could apply its own interpretation to the underlying statute. Somewhat surprisingly, the court did not address the “major question” doctrine, which had been a primary legal argument by those challenging the rules. Under this doctrine, agencies may not regulate in areas of major economic, political or social importance without a clear and express delegation of authority. The court instead held that the best reading of the Communications Act bars the promulgation of net neutrality rules.
Outgoing Chair Jessica Rosenworcel said of the 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.” Meanwhile, Commissioner Brendan Carr, who will become FCC chair starting Jan. 20 and has been a vocal opponent of net neutrality, welcomed the court’s decision. Carr stated that “President Biden’s decision to impose these Title II regulations represented a break from the bipartisan consensus established by a republican Congress and a Democrat President and enshrined in law nearly thirty years ago.”
Next Steps
The court’s decision spells the end of the FCC’s net neutrality regulatory efforts for now. With Republicans set to assume a majority on the commission, the FCC is unlikely to act to repeal the net neutrality rules and instead allow the court’s ruling to remain in place. States might react by enacting state-level net neutrality laws, as California did in 2018. However, those state-level laws may face opposition from the federal government.
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