To the surprise of almost no one in the telecommunications industry, on January 2, 2025, the Sixth Circuit Court of Appeals in Cincinnati released an Opinion in Docket 24-52, rejecting the FCC’s Safeguarding and Securing the Open Internet Order and ending Net Neutrality in the short term and probably for all time.
While the FCC or any other losing party can appeal the decision to the Supreme Court, that is unlikely to occur. The Commission will be majority Republican, and that party is vehemently against global Internet regulations such as Net Neutrality. Others will be dissuaded from appealing the Opinion since the High Court has a 6-3 conservative majority and has made it clear that it is perfectly willing to curb government agencies that act without the precise orders of Congress.
Speaking of Congress, since both houses will also have a majority of Republicans, it too will also not prescribe massive Internet regulations. While it is possible that Congress could codify some of the principles of Net Neutrality, including forbidding the blocking, throttling or prioritizing of Internet traffic, there is no chance Congress would order Broadband Internet Access Providers to be regulated as if they were Title II common carriers or utilities. Additionally, ISP pricing will not be regulated nor will be their so-called “Internet Conduct.” While there will surely be bad Internet actors going forward, their infractions will be handled on a case-by-case basis and primarily by the Federal Trade Commission.
While some may lament the Court’s decision, at the very least it ends the uncertainty about Internet regulation and will hopefully lead to more investment and improved infrastructure.
The most remarkable feature of the Sixth Circuit’s Opinion is that it did not even use the Supreme Court’s Major Question doctrine to reject Net Neutrality as was expected. The Court never had to reach it. Instead, it determined that Broadband Internet Access Service is an information service under Title I and the FCC does not have the authority to regulate it.
Using “the traditional tools of statutory construction,” we hold that Broadband Internet Service Providers offer only an “information service” and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the “telecommunications service” provision of the Communications Act. 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). We therefore grant the petitions for review and set aside the FCC’s Safeguarding Order. (Sixth Circuit Opinion, at pp. 3-4.
The Court concluded that Broadband Internet Service Providers must be regulated as information service providers because while they offer plain old telecommunications services (POTS) for consumers to reach the Internet, they also offer ways for consumers to utilize, generate, acquire, store, or transform the available information on the Internet.
For these reasons, then, it makes sense to exclusively classify integrated services, including those offered by Broadband Internet Service Providers, as information services because the definition expressly contemplates telecommunications usage, tying the “offering of a capability” to utilize (for example) information “via telecommunications… The key here is not whether Broadband Internet Service Providers utilize telecommunications; it is instead whether they do so while offering to consumers the capability to do more…[Broadband Internet Access Services are information services] because [they] provide consumers with a comprehensive capability for manipulating information using the Internet via high-speed telecommunications. (Id., p. 17).
So far, reaction to the Court’s Opinion has been muted, which is a sharp contrast to the last time Net Neutrality was rejected under the first Trump administration. Then we were told repeatedly that the Internet would be destroyed. No doubt, some apocalyptic claims will still be coming. Hopefully, most people won’t believe it this time.