The Biden administration ’s resurrection of broadband “net neutrality” rules is halted in the courts, for now. A three-judge panel of the U.S. 6th Circuit Court of Appeals recently agreed to stop the regulations from going into effect while challenges from broadband providers are litigated, signaling that the plaintiffs are likely to succeed.
In the latest chapter of a long and highly public battle over net neutrality , the Federal Communications Commission voted in April of this year along party lines, with three Democratic commissioners in support and two Republicans opposed, to reclassify internet service providers as “common carrier telecommunications services” under Title II of the 1996 Telecommunications Act instead of as “information services” that fall under Title I of the law.
In practice, that means ISPs are subject to a more utility-style regulatory approach, like that taken with water services or landline phones.
The classification, and the varying amount of FCC authority over privately owned broadband networks, has flip-flopped under the administrations of former Presidents Barack Obama (pro) and Donald Trump (against), and now President Joe Biden (pro again.) The last repeal in 2017 provoked an unprecedented number of public comments at the FCC, death threats to the then-chairman and his family, and warnings from the Senate Democrats X account that “if we don't save net neutrality, you'll get the internet one word at a time.” Despite the political back-and-forth, Congress has refused to clarify the matter in either direction.
Net neutrality supporter Free Press’s vice president of policy and general counsel, Matt Wood, reacted to the 6th Circuit stay in a press statement by saying, “We believe that the litigation to follow will dispel these unfounded phone-and cable-company arguments about Title II’s supposed harms and about the Commission’s authority to classify broadband providers properly under the statute.”
But broadband providers’ chances of eventually having the net neutrality rules thrown out are boosted by recent Supreme Court decisions. In Loper Bright Enterprises v. Raimondo, the court eliminated Chevron deference, meaning that courts, not regulatory agencies, have the authority to decide the scope of regulations passed by Congress. In 2022’s West Virginia v. EPA, the court resuscitated the major questions doctrine, meaning that regulatory agencies, such as the FCC, cannot impose rules that have major economic or political consequences without explicit statutory authority from lawmakers. The combined effect of those decisions means it is likely the FCC exceeded its regulatory authority in its re-upping of net neutrality rules.
Senior scholar Eric Fruits of the International Center for Law and Economics wrote on the organization’s blog, “While this order is not an opinion on the merits, it does suggest that the FCC will struggle to justify its Title II/net-neutrality rules.”
The 6th Circuit wrote that because “the petitioners have shown a possibility of irreparable injury” and because ISPs would “face delays in product rollouts and disadvantages in negotiating interconnection agreements,” the regulations would be stayed from going into effect while the question is decided in court.
Opponents of net neutrality, including the broadband industry itself, also point to a lack of need for the rules. Since they were last repealed in 2017, there have been no widespread cases of site blocking, throttling of data, or other actions that net neutrality would prohibit or that opponents of their repeal warned of.
The Cato Institute’s Human Progress project calculated that when increases in hourly wages for unskilled labor and the 141.9% increase in broadband download speeds are factored in, the price for broadband consumers fell 85.9% in 2023 from 2015.
The 6th Circuit has ordered a tight briefing schedule and hearing timeline. Oral arguments are scheduled for late October or early November of this year. The case will be heard by three randomly selected judges.
If net neutrality by order of the FCC is doomed by the courts, only Congress would be able to institute the regulations. That may change the calculus around the matter for both presidential candidates.
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When the rules were last repealed during the Trump administration in 2017, now-Vice President Kamala Harris wrote in an op-ed for Cosmopolitan magazine, “We can’t count on the free market to protect broadband consumers and online competition.” The 2024 Democratic presidential nominee, Harris, has not said if she’d take up the fight to urge Congress to pass net neutrality laws from the Oval Office.
A second Trump administration may get to consider the issue a win and resolved if Congress declines to pass net neutrality legislation on its own.
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