The Federal Communications Commission (“FCC”) lacks the authority to impose rules on broadband internet and mobile broadband providers, according to a recent ruling from the United States Court of Appeals for the Sixth Circuit. The ruling effectively ends the fight over Net Neutrality rules, which would have disallowed broadband (or high-speed internet) providers from slowing or blocking access to internet content depending on the website. More broadly, the ruling establishes that both broadband internet and mobile broadband services are outside of the FCC’s authority to regulate.
What is Net Neutrality?
Net Neutrality is a policy that mandates internet service providers to treat all internet traffic equally, meaning they cannot block, slow down, or prioritize access to specific websites or content. The stated purpose behind the regulations was to ensure users have equal access to all online information without discrimination based on what they are viewing or using
Net Neutrality regulations were favored by certain internet, streaming, and social media companies such as Google, Facebook, and Netflix, which lobbied for FCC regulation. These companies were concerned that broadband internet service providers could become gatekeepers of access and block or charge for access to content. Meanwhile, Net Neutrality regulations were opposed by cable and telecommunications providers as an overreach by the government. Opponents of Net Neutrality believed the free market related to broadband services effectively regulates any anti-competitive behavior by service providers.
The Court’s Analysis in Ohio Telecom Ass'n v. FCC, No. 24-3449
The case was a consolidation of multiple petitions by associations of broadband service providers, challenging the FCC order reclassifying broadband internet service providers as offering “telecommunications service” under Communications Act of 1934, as amended by Telecommunications Act of 1996. Previously, the FCC had fluctuated in its classification of broadband services. In 2015, the FCC classified broadband as a telecommunications service, which the U.S. Circuit Court for the D.C. Circuit upheld under the Chevron doctrine. In 2018, the FCC reversed this classification, treating broadband as an information service, a decision also upheld by the D.C. Circuit. The 2024 order reversed the 2018 decision, reinstating the 2015 classification.
The Chevron doctrine was established by the Supreme Court in 1984 in a case called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under Chevron, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold a federal agency’s interpretation of the statute, as long as the agency’s interpretation was reasonable. However, the Supreme Court struck down Chevron deference in June of last year, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dept. of Commerce. Under Loper Bright, the Supreme Court held that courts are required to decide legal questions, including an agency’s interpretation of a statute. Therefore, agency rules and regulations are no longer entitled to deference and can be found improper by federal courts.
Relying on Loper Bright, the Sixth Circuit held that the FCC “lacks the statutory authority to impose its desired net-neutrality policies.” While recognizing that the FCC “has significant expertise in overseeing this technical and complex area,” the panel stated the FCC did not have the broad authority to define broadband internet service akin to phone service. The Sixth Circuit held that broadband internet service providers offer an "information service", not a telecommunications service. The court further found that mobile broadband internet service does not qualify as “commercial mobile service” because it is not connected with the public switched network. Mobile broadband is classified as a "private mobile service" and is not subject to common-carrier regulation. Therefore, under the Court’s ruling, both broadband internet service and mobile broadband are outside the FCC’s authority to regulate —such as with Net Neutrality rules.
What Does it Mean?
Net Neutrality has been fiercely debated along partisan lines for the past twenty years. Net Neutrality regulations were put in place by the Obama administration in 2015, before being repealed during the first Trump administration in 2018. Under President Biden, the FCC implemented new regulations (along party lines), which would have disallowed broadband providers from messing with internet speeds depending on the website. The back and forth is effectively over, for the time being. The current Trump administration is unlikely to challenge the Sixth Circuit’s ruling. New FCC Commissioner Brendan Carr is strongly opposed to Net Neutrality regulations.
The ruling only affects federal regulation by the FCC. State laws regulating broadband internet providers in states, such as California, Colorado, and Washington, are unaffected by the decision.
The Sixth Circuit’s decision isn’t limited to Net Neutrality. The Court held that broadband internet and mobile broadband services are completely outside the FCC’s authority to regulate, regardless of the regulation. Moving forward, it is unlikely that the FCC will be able to pass new rules or regulations aimed at broadband internet and mobile broadband services absent an express grant of authority by Congress.
