On August 1, the U.S. Court of Appeals for the Sixth Circuit put the FCC’s new net neutrality rules on hold, pending another hearing, now set for late October. The decision, and the accompanying concurrence, are clearly written and reflect a deference to perceived Congressional intent over that of the expertise and recommendation of the FCC, which is consistent with a very recent U.S. Supreme Court decision that is quoted within the case. What the court did in early August was simply “stay,” or put on hold, the new regulations that the FCC published on May 22, 2024, pending yet another hearing now scheduled for late in the fall. So for now, and for the foreseeable future, the return of a variation of the net neutrality rules from the Obama administration seems unlikely—at least in the near term.
At the most basic level, the fact is that technology evolves light-years faster than does the legislation intended to regulate it. Here, the question is how – and to what extent – ISPs and other providers should be regulated. Both Congress and the courts have addressed the distinctions between “telecommunications services” subject to a heavier regulatory hand and “information services” subject to not only less scrutiny, but also considerably lighter regulation. Without the guarantees of net neutrality, providers are free to block and throttle content, practice paid prioritization (e.g., an ISP charging less to carry its own content over that of other content providers) and exercise “unreasonable interference” (i.e., restricting access by blocking, throttling, or charging higher rates for certain content) with users and edge providers.
The argument goes back to the almost age-old distinction between telecommunications services and information services. While these issues have been litigated ad nauseum, the court’s primary justification for putting the brakes on net neutrality and enforcing common carrier rules is that Congress did not intend for such regulation. Specifically, the opinion states “Absent a clear mandate to treat broadband as a common carrier, we cannot assume that Congress granted the Commission this sweeping power [to do so.]”
In this statement, the opinion, which is unsigned, is correct. Congress did not, when it drafted both the Communications Act of 1934 and the Telecommunications Act of 1996, contemplate the explosion of the Internet to the extent that it has become a utility. It’s hard to fathom a similar argument being made 100 years ago about electricity, but the arguments are essentially the same.
The legal justification relied upon by the court to support the stay rests on a 2009 case which defines four critical factors:
In the court’s opinion, the ISPs’ position is that the classification decision is a “major decision” (quotation marks added), requiring Congressional direction and authorization, rather than policies originating from an agency, in this case, the FCC. As such, while the FCC is expected to appeal the stay, given the current makeup of the Supreme Court and its recent Loper decision, it’s unlikely that the court would support the FCC’s position. One very telling quote from the Sixth Circuit’s opinion reads as follows: “an agency’s power to persuade turns on the thoroughness of its reasoning, its technical expertise, and its ‘consistency with earlier and later pronouncements,’ especially those contemporaneous with the statute’s enactment. The problem is, we do not know which group of experts to respect.”
Quoting from the Loper opinion, the Sixth Circuit opinion goes on to state that “The Commission’s intention to reverse course for yet a fourth time suggests its reasoning has more to do with changing presidential administrations than with arriving at the true and durable ‘meaning of the law.’”
Sadly, this recent decision, should it be appealed, given the current make up of the Supreme Court, is not likely to fare any better than it did at the Court of Appeals. This is disappointing for anyone who believes in the value of net neutrality.
