Net neutrality eviscerated by appeals court ruling

Federal net neutrality rules, which briefly came back from the dead under the Biden administration, have been struck down by the Sixth Circuit Court of Appeals.

The three-judge panel ruled that the Federal Communications Commission (FCC) does not have the authority to impose net neutrality rules on internet service providers (ISPs). The FCC sought to reclassify ISPs as common carriers under Title II of the Communications Act in order to impose policies meant to prevent them from discriminating against different internet traffic, like by slowing speeds or blocking content.

But the judges disagreed with the agency’s interpretation of how ISPs could be classified and were emboldened by the recent downfall of Chevron deference, a legal doctrine that instructed courts to defer to regulatory agencies in many cases. After the Supreme Court did away with that principle in 2024, courts became more free to favor their own interpretations over the judgment of expert agencies. Net neutrality was immediately seen as a prime target to be struck down without Chevron. While the DC Circuit Court of Appeals upheld previous iterations of net neutrality, the Sixth Circuit judges note that it relied on Chevron to do so. “Unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC’s reading of the statute,” they write.

“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,’” the ruling says, citing an earlier decision. After the fall of Chevron, it continues, “that ‘capability,’ if you will, cannot be used to overwrite the plain meaning of the statute.”

This left the judges free to wax philosophical about phrases like “offering of a capability” and “information services,” finely parsing the distinction between those and more heavily regulated telecommunications services. “The existence of a fact or a thought in one’s mind is not ‘information’ like 0s and 1s used by computers,” one part of the ruling reads. It asserts that “speaking reduces a thought to sound, and writing reduces a thought to text … during a phone call, one creates audio information by speaking, which the telephone service transmits to an interlocutor, who responds in turn,” but “crucially, the telephone service merely transmits that which a speaker creates; it does not access information.”

Net neutrality was already in danger, even before this ruling came out — in a suit filed against the FCC by broadband industry associations. The appeals court had already blocked the net neutrality rules from taking effect. During oral arguments in October, the three Republican-appointed judges prodded attorneys about the correct interpretation of the Communications Act and about deference to agency expertise. With President-elect Donald Trump — under whom net neutrality was previously repealed — due to take office in mere weeks, this could be the last we hear about the attempt to reclassify broadband providers as common carriers for a while.

FCC Chair Jessica Rosenworcel called on lawmakers to take up the mantle of creating rules to safeguard the open internet. “Consumers across the country have told us again and again that they want an internet that is fast, open, and fair,” she says in a statement. “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.”

Republican Commissioner Brendan Carr, Trump’s pick to lead the agency once he assumes office, issued a lengthy statement calling the ruling “a good win for the country.” He calls net neutrality rules an attempt by the Biden administration to “expand the government’s control over every feature of the Internet ecosystem” and says the push for the rules was a waste of time. While he’s pleased with the ruling, he adds, “The work to unwind the Biden Administration’s regulatory overreach will continue.”

Former FCC Chair Ajit Pai, who led the movement to repeal the rule during the first Trump administration, took a victory lap on X. “For a decade, I’ve argued that so-called ‘net neutrality’ regulations are unlawful (not to mention pointless),” he wrote. “Today, the Sixth Circuit held exactly that.”