My fellow tech policy enthusiasts, our long national nightmare is over. Last week, the US Court of Appeals for the Sixth Circuit brought an end to the decade-long fight over net neutrality by prohibiting the Federal Communications Commission (FCC) from applying Title II common carrier regulation to broadband providers. The decision is a victory for tech policy, freeing Internet access from the shadow of overbearing regulation. Itās also a win for administrative law, as it aligns with the Supreme Courtās guidance that courts, not agencies, should resolve disputes over statutory interpretations. The ruling reaffirms the principle that important policy decisions should be made by Congress, not by agencies under the guise of interpreting ambiguous statutes.
As many predicted after oral argument, 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, which Justice Scalia once described as āa model of ambiguity or indeed even self-contradiction.ā Under the act, a service is defined as an āinformation serviceā (and therefore exempt from common carriage regulation) if it āoffer[s] a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.ā The Court clarified that consumers purchase broadband to access services on the Internet, services that involve generating, acquiring, and retrieving information online. By connecting consumers to the Internet, broadband providers āofferā consumers the ācapabilityā to do these things āvia telecommunications,ā thus meeting the statutory definition.
The decision is good news for tech innovation. The FCC cannot impose a one-size-fits-all business model on broadband providers, allowing them to explore innovations like 5G network slicing without fearing regulatory backlash. More significantly, broadband providers 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. While the FCC promised to waive many of Title IIās onerous requirements, the fact that it felt compelled to so do only reinforces the courtās conclusion: Congress did not intend for broadband to fall under this category.
Beyond the tech sector, the decision carries significant weight for administrative law. The case vindicates the Supreme Courtās 2024 Loper Bright v Raimondo ruling, which repealed the Chevron doctrine Ā that has long required courts to defer to agency interpretations of ambiguous statutes. Chevron incentivized agencies to stretch statutory language to achieve policy outcomes, essentially usurping Congressās lawmaking role. This generated legal uncertainty: When a new administration took office, agencies would reverse their predecessorsā decisions, requiring courts to sheepishly affirm that the same statutory language means something different than it did a few years earlier. Justice Neil Gorsuchās Loper Bright concurrence cited net neutrality as Exhibit A of this phenomenon. The Sixth Circuit echoed this concern: āThe D.C. Circuit heard substantial challenges to the 2015 and 2018 orders. It applied the now-overruled Chevron doctrine in each case and upheld both wholly inconsistent regulations as āpermissibleā under the Act.ā Under Loper Bright, the court has now decisively ended the regulatory seesaw, making clear that if net neutrality advocates want to impose common carriage on broadband providers, they must seek a legislative solution from Congress.
Indeed, the regulatory hubris Chevron encouraged played a key role in scuttling a bipartisan congressional compromise on net neutrality back in 2014. As the Barack Obama-era FCC first threatened to classify broadband under Title II, House Republicans offered a compromise statute that would have imposed net neutrality rulesāsuch as restrictions on blocking, throttling, and prioritizationāwhile and ensuring that broadband was not subject to Title II regulation. This bill would have given the FCC clear statutory authority to enforce net neutrality without creating the regulatory uncertainty that broadband providers feared. But rather than allowing Congress to debate the compromise, the agency instead reclassified broadband under Title II, setting the stage for the Sixth Circuitās ultimate reversal a decade later. In its eagerness to win a political battle, the agency ultimately lost the broader regulatory war.
Of course, the Sixth Circuitās decision does not mark the final chapter in the net neutrality saga. Intervenors could seek Supreme Court review, although with the incoming Trump administration uninterested in defending the FCC order, the Court is unlikely to take the case. And the information service classification reopens the door for states to implement their own regulations, such as Californiaās net neutrality rules and New Yorkās broadband affordability initiative. But as far as federal policy is concerned, outgoing FCC Chair Jessica Rosenworcel rightly noted that Congress holds the keys to any future development. As the Trump administration considers its own regulatory objectives, it should heed this advice: In a post-Chevron world, the road to lasting change goes not through agencies, but through Congress.
Daniel Lyons
The Sixth Circuit Strikes Net Neutrality in a Victory for Tech and Administrative Law
January 17, 2025
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