The politically motivated ping-pong match associated with Title II classification for broadband services — the much-discussed topic of “Net Neutrality” — has seen its latest volley result in a win for Republicans and the forthcoming Carr Commission.
The U.S. Court of Appeals for the Sixth Circuit on Thursday (1/2) negated the Rosenworcel Commission’s 3-2 vote that brought back the controversial rules first introduced by the Commission during the leadership of Tom Wheeler.
The case, Ohio Telecom Association, et. al. v. FCC, effectively places a full stop on a 3-2 party-line decision made by the FCC’s soon-to-conclude Democratic majority to adopt Title II broadband classification.
The ruling wasn’t wholly surprising, as an official hold on implementation of the “Net Neutrality” rules came August 1, 2023 following a temporary pause granted by the Cincinnati-based federal appeals court on July 12, 2023.
And, it brings regulation of broadband and the internet back to where it was under the Ajit Pai era of the FCC, and where Brendan Carr and the pending Republican leadership set to take shape at the Commission will want broadband regulation to be once President Trump returns to power.
For many observers, the ruling is perhaps a test case for all further court challenges against FCC rulemakings that groups may wish to contest or overturn, with the judicial system freshly empowered from the Supreme Court’s Loper Bright decision to no longer use “Chevron deference” to answer any questions in which ambiguity exists.
For the FCC under Carr, there’s now no need to do what Pai did by undoing rules Republicans believed were wrongly put in place by the Wheeler Commission in the first place.
Understanding where Carr stands on “Net Neutrality” only requires a look back to August, with the Ohio Federal Appeals Court decision to put a hold on the Rosenworcel Commission rules until it ruled on the matter. At the time, Carr chimed in on X, saying, “The Sixth Circuit just blocked the Biden-Harris Administration’s unlawful attempt to increase government control of the Internet through Title II ‘net neutrality’ regulations. [It is a] good win in the broader and ongoing effort to rein in regulatory overreach from Washington.”
Commissioner Anna M. Gomez may be the lone voice who stands with Rosenworcel in the coming years, depending on what transpires with Geoffrey Starks, the other Democrat serving as an FCC Commissioner. In a statement, Gomez said, “As I have consistently said, there is a principle at the heart of the Open Internet debate on which we all agree: Broadband access to the Internet is essential for modern life. I remain convinced that appropriate guardrails are necessary to ensure that this critical service remains accessible and secure for all. In the wake of the Sixth Circuit’s decision, Congress should act to end this debate and to protect consumers, promote competition and economic leadership, and secure the integrity of our networks.”
For Rosenworcel, who will exit the FCC in mere days, the Ohio ruling, while expected, all but torpedoes what had been the hallmark of her tenure as the agency’s head. In a statement released after the Sixth Circuit’s decision was sent to attorneys at Wiley Law; Gibson, Dunn & Crutcher; Mintz Levin; McDermott, Will & Emery; Latham & Watkins; and Wilkinson Barker Knauer — among other recipients — Rosenworcel commented, “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair. With this decision it is clear that Congress now needs to heed their call, take up the charge for net neutrality, and put open internet principles in federal law.”
That may not happen so easily, now that President Trump is returning to the White House with both the House of Representatives and the Senate under Republican control. Therefore, the “Safeguarding and Securing the Open Internet Order” is all but dead.
In writing the opinion, The Hon. Richard Allen Griffin said, “As Congress has said, the Internet has ‘flourished, to the benefit of all Americans, with a minimum of government regulation.’ The Federal Communications Commission largely followed this command from the Telecommunications Act of 1996 by regulating the Internet with a light touch for nearly 15 years after enactment. But since, the FCC’s approach has been anything but consistent.”
The “light touch” phraseology has been championed by Republicans, and by Ajit Pai.
Griffin continued, “Beginning in the late 2000s, the FCC undertook several attempts to impose so-called ‘net neutrality policies,’ which prohibit Broadband Internet Service Providers from controlling users’ Internet access — by varying speeds or blocking connections to third-party websites, for example — based on content, commercial agreements, and other reasons a provider might want to manage a user’s Internet experience. Those efforts culminated in 2015, when the FCC concluded for the first time that Broadband Internet Service Providers offer to consumers a “telecommunications service” and thus are common carriers—and subject to extensive regulation (including net-neutrality restrictions)—under Title II of the Communications Act.
That was under the leadership of Mr. Wheeler, and began a nearly decade-long fight based on ideological differences. The Pai Commission undid Wheeler’s rules; the Rosenworcel Commission brought them back. Now, on the eve of Carr’s ascent to the head of the FCC, the judicial branch has stepped in. And, Griffin blasted the FCC’s “heavy-handed regulatory regime,” and turned right to the Supreme Court’s Loper Bright ruling for its decision.
With Loper Bright ending “Chevron deference,” Griffin explained, “Our task is to determine ‘the best reading of the statute’ in the first instance.”
The result? “Using ‘the traditional tools of statutory construction,’ id., we hold 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). Nor does the Act 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). Id. § 332(c)(1)(A). We therefore grant the petitions for review and set aside the FCC’s Safeguarding Order.”
Read the entire decision by clicking here.
