Sixth Circuit Reaffirms Broadband Internet as Information Service, Limiting FCC's Net Neutrality Authority

Sixth Circuit Reaffirms Broadband Internet as Information Service, Limiting FCC's Net Neutrality Authority

Introduction

In a landmark decision dated January 2, 2025, the United States Court of Appeals for the Sixth Circuit delivered a seminal ruling in In re: MCP No. 185; Federal Communications Commission, In the Matter of Safeguarding and Securing the Open Internet, FCC 24-52. The case, brought forth by the Ohio Telecom Association and other petitioners against the Federal Communications Commission (FCC), centered on the FCC's authority to impose net neutrality regulations on Broadband Internet Service Providers (BISPs). The court's decision marks a significant shift in internet regulation, establishing that BISPs are categorized as "information services" rather than "telecommunications services" under the Communications Act of 1934, as amended by the Telecommunications Act of 1996.

Summary of the Judgment

The Sixth Circuit upheld the petitioners' challenge against the FCC's 2024 Safeguarding and Securing the Open Internet Order. The FCC had reclassified BISPs as offering "telecommunications services" under Title II of the Communications Act, thereby subjecting them to stringent common-carrier regulations, including net neutrality mandates. The court, however, found that BISPs provide "information services" as defined in 47 U.S.C. § 153(24), which do not fall under Title II's common-carrier regulations. Consequently, the court set aside the FCC's order, limiting the agency's ability to enforce net neutrality rules on BISPs without clear congressional authorization.

Analysis

Precedents Cited

The judgment extensively referenced pivotal cases that have shaped the regulatory landscape of internet services in the United States:

  • Brand X Internet Services v. FCC (2005): This Supreme Court case upheld the FCC's determination that cable modem services offered information services, not telecommunications services, thus exempting them from Title II regulations under the then-prevailing Chevron deference.
  • Mozilla Corp. v. FCC (2019): The D.C. Circuit upheld the FCC's 2018 order reclassifying BISPs as information services, reiterating that net neutrality rules could not be imposed under Title I regulatory authority.
  • Loper Bright Enterprises v. Raimondo (2024): This Supreme Court decision overruled the Chevron doctrine, rejecting the EPA's broad regulatory interpretations and emphasizing congressional authorization for significant regulatory actions.

Notably, while Brand X previously provided Chevron-based deference to the FCC's interpretations, the overriding principle from Loper Bright necessitated an independent judicial analysis of statutory language, reducing agency deference in ambiguous cases.

Impact

This judgment has profound implications for the future of internet regulation in the United States:

  • Limitation on FCC's Authority: The FCC can no longer unilaterally impose net neutrality rules on BISPs without clear legislative backing, potentially leading to a deregulated internet landscape.
  • Stabilizing Regulatory Framework: By rejecting the inconsistent regulatory shifts tied to administrative changes, the court promotes a more stable and predictable regulatory environment.
  • Potential for Legislative Action: To enforce net neutrality effectively, Congress may need to enact explicit legislation outlining the FCC's authority and the specific regulations to be imposed on BISPs.
  • Judicial Oversight: The decision reinforces the judiciary's role in scrutinizing agency actions, especially in the absence of Chevron deference, thereby enhancing checks and balances.

The ruling may embolden states to pursue their own net neutrality regulations, leading to a patchwork of state-level policies unless federal legislation provides uniform guidelines.

Complex Concepts Simplified

Chevron Deference

What It Is: A judicial principle where courts defer to an administrative agency's interpretation of a statute which the agency is responsible for enforcing, provided the statute is ambiguous and the agency's interpretation is reasonable.

Relevance to the Case: The Sixth Circuit's decision leveraged the overruling of Chevron deference in Loper Bright, requiring courts to independently interpret statutory language without deferring to the FCC's previous ambiguous interpretations.

Net Neutrality

What It Is: The principle that Internet service providers should treat all data on the Internet equally, without discriminating or charging differently by user, content, website, platform, or application.

Relevance to the Case: The FCC's Safeguarding Order aimed to enforce net neutrality by classifying BISPs under Title II, subjecting them to strict regulations. The court's decision removes this classification, thereby limiting the FCC's ability to enforce such regulations under the current statutory framework.

Title II of the Communications Act

What It Is: A section of the Communications Act of 1934 that establishes the framework for regulating traditional telecommunications services as common carriers, with obligations to provide service on a non-discriminatory basis.

Relevance to the Case: The FCC sought to classify BISPs under Title II to apply common-carrier regulations, including net neutrality rules. The court ruled that BISPs do not fall under Title II but are instead considered information services, exempting them from such regulations.

Conclusion

The Sixth Circuit's decision in In re: MCP No. 185 marks a pivotal moment in the ongoing discourse surrounding internet regulation and net neutrality in the United States. By affirming that Broadband Internet Service Providers are classified as information services, the court effectively curtails the Federal Communications Commission's authority to enforce net neutrality mandates under Title II of the Communications Act. This ruling not only stabilizes the regulatory framework by rejecting the oscillating approach contingent on administrative changes but also underscores the necessity for clear legislative directives to govern the evolving landscape of internet services.

Moving forward, stakeholders in the telecommunications sector, consumers, and policymakers must navigate the implications of this decision, potentially advocating for new legislation to establish definitive regulatory boundaries. The affirmation of BISPs as information services ensures greater operational flexibility for these providers but raises concerns about the preservation of an open and fair internet ecosystem—core tenets championed by net neutrality advocates.

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Case Details

Year: 2025
Court: United States Court of Appeals, Sixth Circuit

Judge(s)

GRIFFIN, CIRCUIT JUDGE.

Attorney(S)

COUNSEL Jeffrey B. Wall, SULLIVAN &CROMWELL LLP, Washington, D.C., for Petitioners. Daniel Woofter, GOLDSTEIN, RUSSELL &WOOFTER LLC, Washington, D.C., for Intervenors. Jacob M. Lewis, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. Jeffrey B. Wall, Morgan L. Ratner, Zoe A. Jacoby, SULLIVAN &CROMWELL LLP, Washington, D.C., Helgi C. Walker, Jonathan C. Bond, Russell B. Balikian, GIBSON DUNN &CRUTCHER LLP, Washington, D.C., Matthew A. Brill, Roman Martinez, Matthew T. Murchison, Charles S. Dameron, LATHAM &WATKINS LLP, Washington, D.C., Jeffrey A. Lamken, Jennifer E. Fischell, Jackson A. Myers, MOLOLAMKEN LLP, Washington, D.C., Maxwell F. Gottschall, SULLIVAN &CROMWELL LLP, New York, New York, Thomas M. Johnson, Jr., Joshua S. Turner, Jeremy J. Broggi, Boyd Garriott, WILEY REIN LLP, Washington, D.C., for Petitioners. Daniel Woofter, Kevin Russell, GOLDSTEIN, RUSSELL &WOOFTER LLC, Washington, D.C., Andrew Jay Schwartzman, Washington, D.C., Albert H. Kramer, PUBLIC KNOWLEDGE, Washington, D.C., James Bradford Ramsay, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Washington, D.C., for Intervenors. Jacob M. Lewis, Scott M. Noveck, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., Robert B. Nicholson, Andrew W. Chang, UNITED STATES DEPARTMENT OF JUSTICE, for Respondents. Thomas R. McCarthy, Jeffrey M. Harris, CONSOVOY MCCARTHY PLLC, Arlington, Virginia, Corbin K. Barthold, TECHFREEDOM, Washington, D.C., Tara M. Corvo, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C., Washington, D.C., Philip D. Williamson, TAFT STETTINIUS &HOLLISTER LLP, Cincinnati, Ohio, Jennifer Tatel, WILKINSON BARKER KNAUER, LLP, Washington, D.C., William P. Barr, TORRIDON LAW PLLC, Washington, D.C., Lawrence J. Spiwak, PHOENIX CENTER FOR ADVANCED LEGAL AND ECONOMIC PUBLIC POLICY STUDIES, Washington, D.C., Paul W. Hughes, MCDERMOTT WILL &EMERY LLP, Washington, D.C., Christopher S. Yoo, UNIVERSITY OF PENNSYLVANIA, Philadelphia, Pennsylvania, David P. Murray, WILLKIE FARR &GALLAGHER LLP, Washington, D.C., Jason Harrow, GERSTEIN HARROW LLP, Los Angeles, California, Kimberly J. Lippi, CALIFORNIA PUBLIC UTILITIES COMMISSION, San Francisco, California, Brianne J. Gorod, CONSTITUTIONAL ACCOUNTABILITY CENTER, Washington, D.C., Sarah R. Goetz, DEMOCRACY FORWARD FOUNDATION, Washington, D.C., Jeffrey T. Pearlman, UNIVERSITY OF SOUTHERN CALIFORNIA, Los Angeles, California, John T. Nakahata, HWG LLP, Washington, D.C., for Amici Curiae.

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