FCC’s Net Neutrality Rules Struck Down by Sixth Circuit (3)

Net neutrality rules, which disallow broadband providers from messing with internet speeds depending on the website, were struck down Thursday by the Sixth Circuit.

Federal law shows that broadband must be classified as an “information service” and not the more heavily-regulated “telecommunications service” the Federal Communications Commission said it was when it adopted the rules in April 2024, a three-judge panel for the US Court of Appeals for the Sixth Circuit ruled. The FCC lacked the authority to impose its rules on the broadband providers, the court said.

“It is true, in one sense, that a telephone user retrieves information from a third-party in a phone conversation with a friend or customer-service agent,” Judge Richard Allen Griffin wrote for himself and Judges Raymond M. Kethledge and John K. Bush. “But that is not the sense meant by the statute.”

The ruling is one of the highest-profile examples yet of an appeals court relying on the newfound authority federal judges enjoy in the wake of Loper Bright Enters. v. Raimondo, which tossed a doctrine that bolstered agency interpretations of unclear laws.

“We acknowledge that the workings of the Internet are complicated and dynamic, and that the FCC has significant expertise in overseeing ‘this technical and complex area,’” Griffin wrote. “Yet, post-Loper Bright, that ‘capability,’ if you will, cannot be used to overwrite the plain meaning of the statute.”

The judges also shot down a similar FCC classification affecting mobile broadband providers.

FCC Chairwoman Jessica Rosenworcel said in a statement following the ruling that “consumers across the country have told us again and again that they want an internet that is fast, open, and fair.” She continued by saying that Congress must address net neutrality “and put open internet principles in federal law.”

Commissioner Brendan Carr, the senior Republican on the FCC whom President-elect Donald Trump chose to be its new chair, called the ruling “a good win for the country” and said President Joe Biden’s administration “chose to waste time and resources imposing these unnecessary command and control regulations.”

Loss for Democrats

The ruling is a blow for Democrats, who passed the rules at the FCC along party lines. The Cincinnati-based appeals court blocked them before they went into effect.

The FCC had effectively reversed a decision from Trump’s first term to classify broadband as the lighter-regulated “information service.” The rules, which essentially reverted to ones the agency put in place during the Obama administration, prevented internet service providers like Comcast Corp. and AT&T Inc. from blocking or slowing traffic from competitors. They also forbade telecommunications companies from giving preferential treatment through “fast lanes” to preferred customers.

Net neutrality advocates have claimed the rules are needed to prevent unnecessary and potentially harmful speed throttling. Providers and many Republicans oppose the rules, saying the broadband market works well and that the new rules invite government interference in a system where throttling hasn’t been a problem.

Many predicted last October’s oral arguments would focus heavily on the major questions doctrine, which states a law must not be interpreted to give an agency the power to decide major issues unless it specifically says as much. However, Griffin wrote that its ruling on how the rules are inconsistent with federal law meant that it didn’t need to address this issue.

Broadband trade groups that challenged the FCC’s rules said in a statement that the Sixth Circuit delivered “a victory for American consumers that will lead to more investment, innovation, and competition in the dynamic digital marketplace.”

The petitioners are represented by Sullivan & Cromwell LLP, Wiley Rein LLP, Lerman Senter PLLC, Gibson, Dunn & Crutcher LLP, Latham & Watkins LLP, and MoloLamken LLP. The FCC is represented in-house. The US is represented by the Justice Department.

The case is MCP No. 185 Open Internet Rule (FCC 24-52), 6th Cir., No. 24-7000, 1/2/25.