6th Circuit Overturns FCC’s Net Neutrality Order

On January 2, 2025, the United States Court of Appeals for the Sixth Circuit released an Order setting aside the FCC’s 2024 Net Neutrality Report and Order.  Applying the analysis set forth in the Supreme Court’s Loper Bright decision (which stated that Courts no longer must afford deference to an agency’s reading of a statute), the 6th Circuit held that “Broadband Internet Service Providers offer only an ‘information service’ under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service’ provision of the Communications Act, id. § 153(51).”   Further, the 6th Circuit found that the Act does not “permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a ‘commercial mobile service’ under Title III of the Act (and then similarly impose net-neutrality restrictions on those services).”

The 6th Circuit explained that Broadband Internet Access Service was consistently defined as an information service for nearly 20 years following the enactment of the 1996 Telecommunications Act, which was upheld by the Supreme Court in Brand X.  It was only in 2015 that the FCC decided to impose net-neutrality policies on broadband providers, policies which have changed “with a new administration” since the 2015 order was issued.  While the D.C. Circuit upheld the various FCC orders under Chevron, under Loper Bright, the 6th Circuit found that “Broadband Internet Service Providers offer an information service and that mobile broadband is a private mobile service. Therefore, the FCC exceeded its statutory authority by issuing the [2024 Net Neutrality] Order.”

Because the Court used Loper Bright to determine that the FCC’s classification of broadband Internet as a Title II service was inconsistent with the plain language of the Communications Act, it specifically noted that it did not need to address whether the major questions doctrine would also bar the FCC’s action.

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