With the 6th U.S. Circuit Court of Appeals ruling overturning the FCC’s latest order (see 2501020047), the U.S. has likely seen the last gasps of net neutrality, Free State Foundation President Randolph May said in the Yale Journal on Regulation. “Because of Loper Bright’s burial of Chevron deference, there’s a good chance that the ‘net neutrality’ saga, finally, may be over, at least in the courts,” May wrote. “With the impending change in the FCC’s makeup, there’s virtually no chance the agency will seek reconsideration or appeal to the Supreme Court,” he added. Other parties in the litigation “favoring regulating ISPs like public utilities could pursue those avenues, but it’s unlikely they will want to risk a Supreme Court decision affirming the Sixth Circuit decision.” Congress, not the FCC, is “the appropriate forum for the debate regarding adoption of a proper policy framework for broadband providers.” Daniel Lyons, a nonresident senior fellow at the American Enterprise Institute, also praised the 6th Circuit decision. “The court eschewed the easier path of ruling under the Major Questions Doctrine and instead tackled the complex and often contradictory language of the Communications Act,” Lyons wrote in a Thursday blog post. He saw the decision as a win for industry and innovation. The FCC can no longer “impose a one-size-fits-all business model on broadband providers, allowing them to explore innovations like 5G network slicing without fearing regulatory backlash,” he said: ISPs “are no longer at risk of rate regulation and other regulatory requirements that come with Title II classification, a category originally designed to discipline the telephone system.”
Sens. Ed Markey, D-Mass., and Ron Wyden, D-Ore., slammed the ruling of the 6th U.S. Circuit Court of Appeals (see 2501020047) vacating the FCC’s April net neutrality order. In a statement released Thursday, the lawmakers said, “Without net neutrality, consumers, small businesses, and innovators alike will face increased costs, reduced choice, and less competition. It is a lose-lose-lose.” They added, “This ruling upends the fundamental principle that internet service providers should not act as gatekeepers, favoring certain users, content, or services over others." Markey and Wyden said the decision also shows why the U.S. Supreme Court was wrong when it overturned the Chevron doctrine. The opinion “makes basic errors about communications technologies, neatly illustrating why expert regulators, not judges, are best positioned to make complex public policy decisions.” Andrew Schwartzman, senior counsel at the Benton Institute for Broadband & Society, in an email wrote that the opinion “misreads” the 1996 Telecom Act “in finding that broadband internet service is not subject to the regulatory requirements of Title II of the Communications Act.” Among other concerns, “that deprives the FCC of the power to protect national security, insure that competitive broadband suppliers can have access to necessary distribution outlets and endangers wireless access programs for low-income consumers.” The “good news” was in the judges didn’t do, Schwartzman said. The three-judge panel “gave a narrow reading to the impact of the recent Supreme Court’s Loper Bright decision overruling the Chevron doctrine,” he said. The court also didn’t “rely on the carriers’ ‘major question doctrine’ arguments, so that the FCC will retain the power to regulate various aspects of broadband service without future Congressional action.” But Seth Cooper, Free State Foundation director-communications policy studies, said the court offered a “straightforward reading” of the Communications Act. The opinion was “refreshing because it shows how traditional tools of statutory interpretation can be used to resolve even seemingly technical questions like the regulatory classification of broadband,” Cooper emailed: “It’s the type of decision that eluded us so long as lower courts were subject to the ‘Chevron doctrine’ and effectively required to rationalize even far-fetched agency interpretations or re-interpretations of supposed ambiguous statutory provisions.”
The 6th U.S. Circuit Court of Appeals ruling overturning the FCC’s latest net neutrality order Thursday was based on the court’s reading of the Communications Act and failed to dive into major questions items, as laid out in recent U.S. Supreme Court decisions (see 2409030030). It also means the next FCC, under President-elect Donald Trump, likely won’t spend its early days on a reversal of the order, which was approved 3-2 in April (see 2404250004).
FCC Commissioner Brendan Carr’s recent warning letter to Disney CEO Bob Iger (see 2412240021) appears politically motivated, could be read as a reversal of Carr’s past stances on sticking to the text of FCC rules and evokes the long-defunct fairness doctrine, according to former FCC commissioners, academics and attorneys we interviewed. President-elect Donald Trump has selected Carr to head the FCC.
The extent to which the U.S. Supreme Court decides the USF challenge on theoretical rather than practical grounds could have major implications for whether the court issues a decision that overturns the program's funding mechanism. The court said last week it will hear a challenge to the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which found the USF contribution factor is a "misbegotten tax.” Consumers' Research challenged the contribution factor in the 5th Circuit and other courts.
A plan for cutting regulations and federal institutions such as the FCC could target broadband access programs and media regulations, but it's likely that a wave of litigation will stymie it, administrative law professors and attorneys told us. Future Department of Government Efficiency (DOGE) heads Vivek Ramasawamy and Space X CEO Elon Musk laid out their plans in a Wall Street Journal opinion column. “It's not to say that maybe some of these changes shouldn't be happening, but, you know, they're taking a wrecking ball to fix something that requires a little bit more finesse than that,” said University of Idaho law professor Linda Jellum. Asked about possible DOGE cuts at the FCC, incoming FCC Chairman Brendan Carr last week told reporters, “There's no question, there's tons of room for driving more efficiency at the FCC." He didn't elaborate.
The incoming Republican administration and Congress will likely work at rolling back many of the current FCC’s policies through a combination of agency action, court decisions and the Congressional Review Act (CRA), attorneys and analysts told us in interviews. The CRA's threat also will likely limit the current FCC's agenda, they said. “The CRA is kind of looming over anything the FCC wants to try to do before the administration switches over,” said Jeffrey Westling, American Action Forum director-technology and innovation.
A three-judge appeals court panel hearing a challenge (docket 24-7000) of the FCC's Title II reclassification of broadband questioned industry groups and the agency Thursday about the major questions doctrine (see 2409030030). Oral argument was held at the 6th U.S. Circuit Court of Appeals, where judges also questioned the relationship between the doctrine and Chevron deference, as well as the statutory interpretation of the Communications Act and the FCC's changing positions over time.
Broadcasters, MVPDs and network programmers want the FCC to shelve plans that require disclosures about the use of AI in political ads because they’re unworkably burdensome, exceed agency authority and won’t affect digital platforms, said reply filings in docket 24-211.
The FCC's reclassification of broadband as a Title II telecom service under the Communications Act is a "straightforward" violation of the major-questions doctrine, ISPs told the 6th U.S. Circuit Court of Appeals in a reply brief filed Wednesday (docket 24-7000). USTelecom, NCTA, CTIA, ACA Connects, the Wireless ISP Association, and several state telecom groups argued the provision of internet access has "always been the core driver of the information-service classification and that function remains unchanged today" (see 2409120032). The FCC "offers little more than its say-so to support its contrary view," the coalition said, adding that its "forced forbearance and strained reclassification of mobile broadband" underscores "how poorly broadband fits into the Title II scheme." The groups argued that the FCC "lacks any good explanation from departing from its prior view" that the costs of reclassification outweigh any benefits and hasn't addressed the major questions doctrine's "obvious political salience." Congress didn't clearly authorize the FCC to classify broadband as a telecom service, the groups noted, adding it should remain a Title I information service because it includes domain name systems and caching, which are "integral information-processing components." The coalition also argued the FCC lacked statutory authority to classify mobile broadband as a commercial mobile service under Title II because it's not part of the public switched network, or the ten-digit telephone network, which is "distinct" from the public internet.